APPELLATE COURT OF ILLINOIS, FIFTH DISTRICT
538 N.E.2d 1182, 183 Ill. App. 3d 46, 131 Ill. Dec. 626 1989.IL.622
Appeal from the Circuit Court of Jackson County; the Hon. William H. South, Judge, presiding.
PRESIDING JUSTICE WELCH delivered the opinion of the court. HARRISON and CHAPMAN, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE WELCH
Plaintiff, D.E. Wright Electric, Inc., appeals from the dismissal with prejudice of its complaint against defendant, Henry Ross Construction Company, Inc., by the circuit court of Jackson County on November 20, 1987. For the reasons which follow, we reverse the order of the circuit court and remand this cause with directions.
Plaintiff filed its complaint in the circuit court of St. Clair County on May 24, 1976. The action was brought under section 28 of the Mechanics' Liens Act (Ill. Rev. Stat. 1975, ch. 82, par. 28), against the owner of the improved property, First National Bank and Trust Company, as trustee, and the defendant/contractor, Henry Ross Construction Company, Inc.
Section 28 of the Mechanics' Liens Act provides that a subcontractor may sue the owner and contractor jointly for the amount due under the subcontract, and a personal judgment may be rendered against both. Such an action may be maintained against the owner only when the plaintiff establishes a right to the lien. All suits and actions by subcontractors under this section must be brought against both the contractor and the owner jointly, and all judgments where the lien is established shall be entered against both jointly. However, "this shall not preclude a judgment against the contractor, personally, where the lien is defeated." Ill. Rev. Stat. 1987, ch. 82, par. 28.
Plaintiff's complaint alleges that plaintiff entered into a subcontract with defendant, Henry Ross Construction Company, Inc., to perform certain electrical work and supply materials for the construction of a building located on land owned by First National Bank and Trust Company, as trustee; that plaintiff has performed under the contract; that there remains due and owing to plaintiff under the contract the sum of $56,516.68; and that plaintiff has served upon both the contractor and the owner a notice of lien as provided by the Mechanics' Liens Act. The complaint prays that the court enforce plaintiff's rights under the Mechanics' Liens Act and enter judgment jointly against both the contractor and owner.
On July 28, 1976, defendant, Henry Ross Construction Company, Inc., filed a motion to dismiss plaintiff's complaint for the reason that the subcontract between plaintiff and defendant provides that
"[all] claims, disputes, and other matters in question arising out of, or relating to, this Subcontract, or the breach thereof, shall be decided by arbitration . . .."
On August 22, 1978, the court ordered all further proceedings stayed until such time as arbitration is concluded. On December 1, 1978, plaintiff moved the court to set aside the stay order for the reason that the subcontract between plaintiff and defendant also provides that the arbitration clause
"shall not be deemed a limitation on any rights or remedies which the Subcontractor may have under any Federal or State mechanics' lien laws"
and that plaintiff's action was brought pursuant to the Mechanics' Liens Act of the State of Illinois. On January 3, 1979, the court vacated its order of August 22, 1978, staying proceedings in this ...