On appeal from a summary judgment upon the striking out of an answer.
For the appellants, Edward A. Merrill.
For the respondent, Edward Sachar.
The opinion of the court was delivered by
CAMPBELL, J. This is an action on a lien claim and the complaint sets forth all the necessary allegations, under the statute, entitling the plaintiff, lien claimant, to the recovery of a judgment, specially against the lands of the defendants, owners, described in the lien claim and in the complaint. The defendants below, the owners of the lands, answered admitting the making of the contract with the general contractor, one Perrucci, for the erection of the building upon their lands; putting the plaintiff to proof of the execution of the contract between said general contractor and the plaintiff for the plumbing work; that such work was completed and that a balance of $170, the amount sued for, remained due and unpaid and that the plaintiff, lien claimant, had a judgment against the general contractor for such balance of $170, the amount liened and sued for. The defendants below, appellants here, admitted that the plumbing work was fully completed as called for by the contract between
themselves and their general contractor, but their answer contained the formal defense permitted by section 24 of the Mechanics' Lien act (3 Comp. Stat., p. 3309), viz., "defendants deny that said alleged debt is a lien upon the building and land described in the complaint and as an affirmative and separate defense defendants plead that said building and land are not liable for said alleged debt." Upon the filing of such answer the plaintiff below gave notice of a motion to strike the answer because it was sham or frivolous and upon a hearing upon such motion filed an affidavit showing that he, the said plaintiff, was a subcontractor, under the general contractor, for the doing and performing of the plumbing work; that his total contract price was $1,350; and that there remained a balance due him of $170, for which he had obtained a judgment against the general contractor; that his work was fully completed under his contract and that he had demanded payment of the balance of $170 due him and that it had not been paid; that his last work was done within four months prior to filing his lien claim; that the work and material sought to be recovered for were actually performed and used in the construction of the building located upon the premises described in his lien claim, and that although the contract with the general contractor was made by the defendant, Salvatore Nannino, and the title to the lands were in that party and his wife, nevertheless his wife consented thereto.
The defendants below filed no counter-affidavits, and, in fact, refused to make and file any, admitting that if the facts as set forth in the plaintiff's affidavit were true he was entitled to have judgment.
The Circuit Court judge to whom the application was made thereupon made an order striking out the answer and for summary judgment.
From such judgment the defendants below appeal and urge, for reversal, several reasons, as follows:
1. The answer was not sham because section 24, Mechanics' Lien act (3 Comp. Stat., p. 3309), provides: "The owner or mortgagee may plead that said building or land are not
liable to said debt, and in such case it shall be necessary for the plaintiff, to entitle him to judgment against the building and lands, to prove that the provisions of this act, requisite to constitute such lien, have been complied with;" and that, as this is a defense permitted by statute, it cannot be stricken out but the ...