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Garbe Iron Works, Inc. v. Priester

OPINION FILED NOVEMBER 22, 1982.

GARBE IRON WORKS, INC., PLAINTIFF-APPELLANT,

v.

GEORGE J. PRIESTER, INDIV. AND D/B/A GEORGE J. PRIESTER AVIATION SERVICE, ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County; the Hon. Francis X. Golniewicz, Judge, presiding.

JUSTICE GOLDBERG DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 27, 1982.

Garbe Iron Works, Inc. (plaintiff), filed this action against George J. and Veta L. Priester, National Precast, Inc., Precast's trustee in bankruptcy, and other parties (defendants) to enforce a mechanics' lien (Ill. Rev. Stat. 1979, ch. 82, par. 1 et seq.). On motion of defendants, the trial court dismissed counts I and II of the amended complaint with prejudice. Plaintiff appeals.

In passing upon a motion to dismiss, the well-pleaded facts in plaintiff's amended complaint are to be taken as true. (Bio-Medical Laboratories, Inc. v. Trainor (1977), 68 Ill.2d 540, 545, 370 N.E.2d 223.) The pleadings established the following chronology:

December 1, 1978: Acting under a contract with George and Veta Priester (owners), National Precast, Inc. (contractor), entered into an agreement with plaintiff whereby plaintiff would furnish labor and materials for the property of the owners.

February 2, 1979: Plaintiff completed performance under the contract.

May 2, 1979: Plaintiff filed a claim for mechanics' lien with the recorder of deeds of Cook County. The property owners were served with a copy of the lien. Ill. Rev. Stat. 1979, ch. 82, par. 21.

August 11, 1980: The contractor filed a petition in bankruptcy under chapter XI in the Federal District Court. This automatically stayed all proceedings in the State court. 11 U.S.C. § 362(a) (Supp. II 1978).

December 23, 1980 (133 days later): The bankruptcy court entered an order modifying this stay to permit plaintiff to file and pursue its suit to attempt foreclosure of its mechanics' lien.

March 16, 1981: Plaintiff filed the instant suit.

Count I of the amended complaint sought to foreclose plaintiff's mechanics' lien. Count II sought damages from the property owners for payments made to the contractor allegedly in violation of plaintiff's rights under section 32 of the Mechanics' Liens Act. Ill. Rev. Stat. 1979, ch. 82, par. 32.

On November 12, 1981, various defendants moved to strike and dismiss the amended complaint for failure to state a cause of action. The defendants contended the complaint should be dismissed because plaintiff failed to file its suit to enforce the lien within two years after the completion of the contract. (Ill. Rev. Stat. 1979, ch. 82, pars. 9, 28.) The trial court dismissed plaintiff's amended complaint with prejudice.

Plaintiff contends the two-year limitation period for foreclosure of a mechanics' lien (Ill. Rev. Stat. 1979, ch. 82, pars. 9, 28) was tolled by the filing of the bankruptcy petition by the contractor. The Federal Bankruptcy Act states (11 U.S.C. § 362(a) (Supp. II 1978)):

"Except as provided in subsection (b) of this section, a petition filed under section 301, 302, or 303 of this title [11 U.S.C.S. secs. 301, 302, or 303] operates as a ...


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