Touhy v. McCagg

134 Ill. App. 56, 1907 Ill. App. LEXIS 328

• Court: Appellate Court of Illinois
• Decided: May 14, 1907
• Docket: Gen. No. 12,448
• Status: Published

Opinion

Mr. Justice Baker

delivered the opinion of the court.

The regular and proper practice in this case was for Catherine C. and Patrick L. Touhy to sue out'the writ of error in the names of all the defendants to the bill who were alive when the writ was sued out, and then summon and sever the plaintiffs in error who refused to assign errors. Wuerzburger v. Wuerzburger, 221 Ill. 277, and cases there cited.

In Wormley v. Wormley, 207 Ill. 411, it was held, that a writ of error sued out by only one of the complainants who names all of his co-complainants and the defendants as defendants in error, will not be dismissed for misjoinder of parties, where the defendants in error are served as defendants in error, or enter their appearance, and fail to assign cross errors or ask to be joined as plaintiffs in error, since such action creates a severance.

It is true that only one of the defendants to the bill was originally made a defendant in error in this case, but section 10 of the Statute of Amendments and Jeofails provides that writs of error may be amended.

By amendment, made by leave of court, the remaining" defendants other than the plaintiffs in error .and Wells, trustee, were made defendants in error, and with the exception of Jackson, whose death was suggested on the record, were all served as defendants in error.

Under the rule stated in Wormley v. Wormley, supra, their failure to assign cross error or to unite with the plaintiffs in error in the prosecution of the writ of error, operates to create a severance and justifies the plaintiffs in error in prosecuting the writ of error alone. The motion to dismiss the writ of error will therefore be denied.

The writ of error and scire facias were sued out July 5, 1905. Jane Creigh Wells, the grantee through mesne conveyances from complainant of said premises, filed in the cause her petition for a writ of assistance July 14, and an order was made July 18, 1905, that such writ issue. Neither said petition nor order has any proper place in the transcript of the record in this cause, and will be stricken therefrom.

The only assignments of error relating to any order or proceeding in the cause, made or had prior to the suing out of the writ of error in this case, which have been argued by counsel for plaintiffs in error, are those which relate to the allowance in the foreclosure decree of $600 to complainant for the services of his solicitor under the provisions of the trust deed. The same question was presented in the case of Touhy et al. v. McCagg, Executor, etc., 121 Ill. App. 93.

The evidence, the master’s report and recommendation, and the provisions of the decree relating to the allowance of solicitors ’ fees were the same in that case as in this, except that the amount of the decree is much greater in this case than in that, and the allowance for solicitors’ fees is $600 in this pase and was $150 in that case. The question has been again argued by counsel and considered by us. We see no reason to depart from the conclusion reached in that case that it was error to allow solicitors’ fees for services rendered by Blakeley, the partner of Wells, the trustee in the trust deed which was foreclosed, when such compensation would go into the partnership funds and Wells receive the same profit therefrom that he would receive if the services had been rendered by the firm of Wells and Blakeley.

The petition of Jane Creigh Wells for a writ of assistance filed July 14, 1905, the several affidavits filed' in support of and in opposition to said petition; the order of the Superior Court entered July 18, 1905, directing that such writ of assistance issue; the writ of assistance issued pursuant to said order, and the return of the sheriff of Cook county thereon will be stricken from the transcript of the record herein.

So much of the decree as allows to complainant $600 for solicitors’ fees will be reversed; in all other respects the decree will be affirmed and the cause will be remanded to the Superior Court, with directions to deny any allowance of solicitors’ fees.

Reversed and remanded with directions.