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Fitzgerald v. Van Buskirk

JULY 22, 1968.

HOMER FITZGERALD, PLAINTIFF-APPELLANT,

v.

JAMES VAN BUSKIRK AND SONJA VAN BUSKIRK, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of McHenry County, Nineteenth Judicial Circuit; the Hon. CHARLES S. PARKER, Judge, presiding. Reversed and remanded.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT.

The plaintiff, Homer Fitzgerald, brought this suit against the defendants, James and Sonja Van Buskirk, to foreclose a mechanic's lien against certain property owned by them. The trial court granted the defendants' motion to dismiss the complaint on the grounds that it did not state a cause of action.

The plaintiff contends that his complaint was sufficient to state a cause of action under the Mechanics' Liens Act (Ill Rev Stats 1967, c 82, par 1, et seq.). The complaint alleged that on October 1, 1965, the plaintiff and the defendants entered into an oral contract under which the plaintiff was to act as general contractor and supervise the construction of five buildings, containing four apartments each, and it set forth the legal description of the premises on which the improvements were to be constructed. It next alleged that the plaintiff commenced work under the contract and continued such work until the defendants notified him that they were repudiating the contract; that he was thereby dismissed without reason or justification; that the total value of the improvements was to have been $187,000, and the plaintiff's fee for such work was to have been $20,000, none of which he had been paid; that the construction completed at the time of the repudiation had a value of approximately $60,000; and that a contractor's lien had been filed in the Recorder's office (a copy of which was attached to the complaint), which asserted that the sum of $20,000 was due the plaintiff. The complaint asked for an accounting of the amounts due to the plaintiff, and a lien decreed for the amount found to be due, and for other relief.

The motion attacking the complaint asserted in general terms that there were not any, or sufficient, facts asserted in the complaint to state a cause of action, and that the allegations were mere conclusions and were contradictory.

The parties disagree as to the manner in which the complaint should be construed. The plaintiff contends for the liberal construction called for by the Civil Practice Act (Ill Rev Stats 1967, c 110, pars 33(3), 42(3)). The defendants assert that under the Mechanics' Liens Act, the complaint must be strictly construed.

Section 1 of the Civil Practice Act states that the provisions of the Act shall apply to all civil proceedings, except certain enumerated ones, or other proceedings in which the procedure is regulated by separate statutes. "In all those proceedings the separate statutes control to the extent to which they regulate procedure, but this Act applies as to matters of procedure not so regulated by separate statutes."

Section 33(3) of the Act provides that "(P)leadings shall be liberally construed with a view to doing substantial justice between the parties." Section 42(2) adds that "(N)o pleading is bad in substance which contains such information as reasonably informs the opposite party of the nature of the claim or defense which he is called upon to meet." Section 4 of the Act states that the Act itself is to be liberally construed, "to the end that controversies may be speedily and finally determined according to the substantive rights of the parties." And, section 33(1) of the Act requires only that the pleading "shall contain a plain and concise statement of the pleader's cause of action. . . ."

These sections of the Civil Practice Act are designed and intended to permit controversies to be determined according to substantial justice between the parties, and not according to the technicalities or niceties of pleading. Under the Act, the test of the sufficiency of the complaint is whether it informs the defendant of a valid claim under a general class of cases. Fanning v. LeMay, 78 Ill. App.2d 166, 171, 222 N.E.2d 815 (1966).

In Hall v. Gruesen, 22 Ill. App.2d 465, 161 N.E.2d 345 (1959), at pages 468 and 469, the court pertinently stated:

"The averments are not in that precise language at one time required, but under the Practice Act, pleadings are liberally construed with a view to doing substantial justice between the parties. (Ill Rev Stats 1957, c 110, Par 33.) This is not an idle generality to which only lip service need be paid. It is the pronouncement of a burial service for the formalities of Chitty and the rigors of common law pleading. . . . The essential test of a complaint is that it inform the defendant of a valid claim."

In Kita v. YMCA of Metropolitan Chicago, 47 Ill. App.2d 409, 198 N.E.2d 174, (1964), the court set forth at length an informative resume of the development of pleading, with the conclusion that the Civil Practice Act requires only that a complaint, by reasonably intelligent allegations, be sufficient to advise the opposing party of the case which the plaintiff will seek to prove against it; and that the court, in determining whether a complaint is adequate to meet this test, judge the complaint with admonitions of liberal construction and reasonable information in mind.

Unless the Mechanics' Liens Act provides to the contrary, the requirements of the complaint and the construction to be afforded it shall be governed by the provisions of section 1 of the Civil Practice Act. The Act does not contain any provisions suggesting that the sections of the Civil Practice Act referred to above should be inapplicable. Section 11 of the Mechanics' Liens Act sets forth the necessary averments which must be stated in a complaint in order to assert a valid claim under this class of cases. It does not provide that the complaint must be tested by any other standard than that required by the Civil Practice Act. Sections 9 and 12 of the Act suggest the contrary.

Section 9 permits a determination of the merits of the litigation with even less formality in pleadings than that required by the Civil Practice Act. It states, in part:

"The plaintiff or petitioner, and all defendants to such complaint or petition may contest each other's right without any formal issue of record made up between them other than that shown upon the original complaint or petition, as well with respect to the ...


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