Appeal from the Circuit Court of Kankakee County; the Hon.
DAVID E. ORAM, Judge, presiding. Affirmed.
This is an appeal from an order of the Circuit Court of Kankakee County allowing a motion to dismiss the complaint of Floyd M. Anderson which had been filed to foreclose a mechanic's lien on land owned by defendant W.D. Gousset. The action was filed on August 28, 1963, and there was a prayer that the premises be sold to satisfy the claim. The action was brought within two years after plaintiff had completed the improvements referred to in the complaint, the completion date being September 23, 1961. Thereafter, the defendant filed an answer and the case was set for hearing in December of 1963 at which time defendant moved that plaintiff's complaint be dismissed for non-joinder of a necessary party, namely the wife of defendant whose interest in the property was an inchoate right of dower. Plaintiff thereupon asked leave to amend the complaint joining defendant's wife as a proper and necessary party defendant. Defendant objected on the ground that the complaint could not be lawfully amended to include the wife after the two-year statutory period for filing the mechanic's lien foreclosure had expired. The Court then entered a decree allowing the motion to dismiss.
On appeal in this Court, both parties assert that the defendant's wife was a necessary party and plaintiff further contends that the proper procedure was to allow plaintiff's amendment to the complaint joining the wife as a necessary party on the premise that such amendment relates back to the date of filing the original pleading. It was the position of the trial court and likewise of the defendant on appeal in this Court that the defendant's wife, Olive Gousset, could not be made a party defendant on motion more than two years after the completion of the alleged contract which was the basis of the action to foreclose a mechanic's lien.
The Mechanics' Liens Act is designed for and contemplates a single action to foreclose the lien and for enforcement thereof. All lien claimants and other persons known to be interested in the premises must be joined either as plaintiffs or defendants, so that the Court can adjust all equities and render a decree properly distributing all of the proceeds of sale (Leffers v. Hayes, 327 Ill. App. 440, 64 N.E.2d 768; Bingaman v. Dahm, 307 Ill. App. 432, 30 N.E.2d 509). The joinder of a spouse is obviously contemplated since the Act provides specifically that a mechanic's lien would have priority over the dower interest of the spouse.
Both parties agree that defendant's wife was a necessary party to the action, principally because under section 1 of the Mechanics' Liens Act (Illinois Revised Statutes, chapter 82), a mechanic's lien is made superior to the right of dower of husband or wife provided the owner of the dower interest has knowledge of the improvement and did not give written notice of objection to the same. To become effective this, necessarily, would require that the owner of the dower interest be made a defendant and that it be alleged and proven that he or she had knowledge of the improvement and did not object (Leffers v. Hayes, 327 Ill. App. 440, 64 N.E.2d 768). Filing of an abstract of record was excused in this case and we are justified in relying on the briefs filed in this Court which specifically assert, on part of plaintiff, that the plaintiff was entitled to foreclosure and sale of the premises and that the spouse was a necessary party. Defendant likewise asserts that the sole issue in the case was clear and simple and was simply: "Could the wife of the defendant be brought into the case as a party defendant after the expiration of the two-year period of limitations, where no attempt was made to make a showing as required by section 46(4) of the Civil Practice Act?" We must assume, therefore, for the purposes of this case that plaintiff asserts the right to make the spouse a party defendant after the expiration of the two year period with the further right to proceed to make a showing, if it could be made, that the spouse had knowledge of the improvement and did not object to it. Under well established rules of procedure, this assumption will be conclusive in this Court since we will not search the record for the purpose of reversal but only to affirm (In Re Petition to Annex Certain Territory, 42 Ill. App.2d 432, 192 N.E.2d 553). What we have to say in this case, therefore, may or may not be a guide or precedent in a case where no attempt is made to affect the interest of a spouse. The parties also recognize that an action to foreclose a mechanic's lien is required to be filed within two years after completion of the contract or such right cannot be invoked (Ill Rev Stats c 82, §§ 7 and 9).
Under the Civil Practice Act, liberal provisions are available for amendment any time before final judgment (Ill Rev Stats c 110, § 46(1)) and joinder in mechanic's lien procedures is permitted under the provisions of the Mechanics' Liens Act (Ill Rev Stats c 82, § 11). The basic problem before us, however, is not one simply of allowing an amendment but whether a party defendant can thereby be deprived, in effect, of the defense of the Statute of Limitations, or whether such amendment can, in effect, eliminate objections raised by such party defendant based upon filing as against such Defendant after the two-year limitation period specified in the Mechanics' Liens Act.
The courts of this State have pointed to the distinction between an amendment which states a new cause of action relative to the running of the Statute of Limitations and one which does not, in the case of Pipe Trades, Inc. v. Lemon, 346 Ill. App. 216, 109 N.E.2d 562. In that case it was concluded that introducing by amendment an essential element of the cause of action which was originally omitted, is considered a new cause of action and that where a statement of claim to foreclose a mechanic's lien, originally filed within the two-year period, omitted a necessary party an amended statement of claim filed after the two-year period was the beginning of an action against the new defendant and the right to foreclosure was lost. In North Side Sash & Door Co. v. Hecht, 295 Ill. 515, 129 N.E. 273, the court pointed out that the time fixed for commencing an action under the Mechanics' Liens Act is a condition of liability itself and not of the remedy alone. The provisions of the statute creating the lien requiring the suit to be filed within a specific period is more than an ordinary statute of limitation and goes to the existence of the right itself. The court pointed out that it is a condition attached to the right to sue as a basic matter. The court then went on to conclude that inasmuch as the limitation of the time to sue is considered not merely of the remedy, but of the right of action itself, the cause of action itself exists subject to the limitation and the complaint must allege or state facts showing that the action is brought within the time prescribed by statute. The court then observed that the amended complaint first contained the essential averment, and that the suit was not begun until the amended complaint was filed, and, therefore, that no lien was established.
While the North Side Sash & Door case preceded the enactment of the Civil Practice Act, it serves to point up a basic issue in the case before us. Under the terms of the Civil Practice Act (Ill Rev Stats c 110, § 46(4)), it is now specifically provided that a cause of action against a person not originally named a defendant is not barred by lapse of time under any statute or contract prescribing or limiting the time within which the action may be brought or the right asserted if all of certain terms and conditions are met including the service of summons upon the person; knowledge of that person within the time the action might have been brought or the right asserted against him that he knew that the original action was pending; and that it grew out of a transaction or occurrence involving or concerning him; and that for the purpose of preserving the cause of action under those conditions, an amendment adding the party as a party defendant would relate back to the date of the filing of the original pleading so amended. In the record before us, no such service of summons or knowledge was shown. Similarly, under section 11 of the Mechanics' Liens Act in defining necessary parties, where provision is made that any such persons may become parties at any ...