Appeal from the Circuit Court of Cook County; the Hon. B. FAIN
TUCKER, Judge, presiding. Affirmed.
MR. JUSTICE KLUCZYNSKI DELIVERED THE OPINION OF THE COURT.
Plaintiff sued to foreclose mechanic liens on two pieces of property. Defendants, the owners, filed their appearance, a demand for trial by jury and a counterclaim for monies expended, and to be expended, because of plaintiff's faulty work on some 27 other properties. Plaintiff filed his answer and replication and the issues were thusly joined.
On defendant-counterclaimants' motion the entire cause was then referred to a master in chancery. Plaintiff raised no objection to the reference.
After the close of plaintiff's case, and when defendant-counterclaimants began their proof, the master noticed the jury demand and called this to the attention of the parties. Defendant-counterclaimants made motion to withdraw their jury demand and plaintiff objected to the withdrawal. The master allowed the motion, concluded the hearing and made his report to the chancellor. In it he recited the taking of proofs, and reported the same together with his conclusions of law and fact, the testimony so taken being made a part of his report.
He recommended that damages be awarded defendant-counterclaimants in the sum of $11,056, and that costs be assessed against the plaintiff. He also recommended that the plaintiff's suit be dismissed for want of equity.
The chancellor entered a decree "upon the consideration of said exceptions to said master's report, the pleadings, the evidence, the exhibits, the master's report and after hearing arguments of counsel and being fully advised in the premises." The decree pronounced in detail the chancellor's findings regarding the issues involved and decreed that the master's report be approved and affirmed; that the plaintiff's action be dismissed with prejudice; that the master's fees, being reasonable, be charged as costs and assessed against the plaintiff, and that defendant-counterclaimants have judgment for $11,056 plus costs of the suit including the master's fees.
Plaintiff filed a direct appeal to the Illinois Supreme Court. That court transferred the cause here, ruling that plaintiff's claim did not present a substantial constitutional question so as to give it jurisdiction.
Plaintiff, here, as he did below, contends that the master was without authority to hear the counterclaim and that he has been denied the right to trial by jury. To determine the issues raised by this appeal it is necessary to consider whether a court of chancery has jurisdiction over the subject matter of defendant's counterclaim. As spoken of here, jurisdiction is the power to adjudge concerning the general question involved, and concerns itself with whether the action states a claim belonging to the general class of cases over which the authority of the court may properly extend. Miller v. Rowan, 251 Ill. 344, 96 NE 285 (1911).
When the original complaint in the instant case was filed, it was simply an action in equity seeking to enforce a mechanic's lien. At that time neither party had a right to demand a jury trial, or if such had been done, the granting thereof would have been entirely discretionary with the chancellor. (Ill Rev Stats 1961, c 110, § 63.) Defendants' answer to the complaint alleged that the defective character of plaintiff's work amounted to a lack of substantial performance of the terms of the oral contract, and prayed that the lien action be dismissed for want of equity. Such defense merely defeats the plaintiff's cause of action and does not seek affirmative relief (Wilson v. Tromly, 404 Ill. 307, 89 N.E.2d 22 (1949)), and a jury trial under such circumstances would also have been discretionary with the court.
The counterclaim, on the other hand, alleged that defendants had suffered damages as a result of the faulty and defective work of plaintiff on some 27 distinct pieces of property other than those which were the subject of the lien action, and affirmative relief was requested by way of a money judgment.
Sec 13 of the Mechanics' Liens Act (Ill Rev Stats 1961, c 82, § 13) provides that an owner may make any defense against the contractor by way of counterclaim that he could in any action at law and may recover the excess of his claim over that due the contractor as a result of the latter's defective performance, nonperformance, or delay in performance. Booher v. Williams, 341 Ill. App. 504, 95 N.E.2d 518 (1950); Baker v. Palmer, 332 Ill. App. 284, 75 N.E.2d 50 (1947); Edward Edinger Co. v. Willis, 260 Ill. App. 106 (1931). And as indicated by the 1935 amendment to said sec 13, the word "counterclaim" has replaced the phrase "set-off, recoupment, or counterclaim" in keeping with the construction given Sec 38 of the Practice Act, that there is no requirement that the original demand and the counterclaim shall be of the same character. They may be legal, equitable, or both. People ex rel. Bradford Supply Co., Inc. v. Circuit Court of Pulaski County, 393 Ill. 520, 66 N.E.2d 420 (1946).
The enactment of the Civil Practice Act has greatly modified the procedures in civil actions where both legal and equitable claims are involved, but the constitutional guarantee of trial by jury in actions at law still requires that certain distinctions between law and equity be retained. Dunham v. Kauffman, 385 Ill. 79, 52 N.E.2d 143 (1943). See also Historical and Practice Notes to Section 31 of the Civil Practice Act. The procedural problem arises from the fact that presently the forum has concurrent jurisdiction of both legal and equitable causes of action.
Section 44 of the Civil Practice Act provides that subject to rules, legal and equitable causes of action may be joined against any defendant or defendants and that all cross demands, whether in the nature of recoupment, set off, cross-bill in equity or otherwise may be set up in the defendant's answer as counterclaims. The trial court is given discretion to order separate trials of any causes of action or counterclaims which cannot be conveniently disposed of with the other issues in the case. Where no jury is employed, the court may try the legal and equitable issues together.
Rule 11 of the Supreme Court provides that when legal and equitable actions are pleaded separately, the court shall first determine whether the actions joined by the separate counts are properly severable, and, if so, whether the action shall be tried together or separately, and in what order. If the court determines that the actions are severable, the issues formed on the law counts shall be tried before a jury when a jury has been properly demanded, or by the court when a jury has not been properly demanded. The equitable issues shall be heard and decided in the manner heretofore practiced in courts of equity. ...