Phillips v. Sherburne

30 Ill. App. 327, 1888 Ill. App. LEXIS 287

Opinion

Gary, J.

This is another of the cases in which intervening petitioners have been allowed claims against a fund in court, paid in by the commissioners of the South Park for the use of appellant.

It is conceded that the only question in it not decided in other cases, is upon the withdrawal by the appellee from the prosecution and defense of the eases of the appellant, the claim being for attorney fees. Upon the evidence, it was a question whether that was a voluntary withdrawal or an acceptance of a previous discharge, with a preponderance of the testimony in favor of the latter view. The appellant had assigned $3,000 of the fund to the appellee to secure his fees, and could not take away that security by discharging him.

The case of Morgan v. Roberts, 38 Ill. 65, is not parallel.

Decree affirmed.