Appeal from the Superior Court of Cook county; the Hon. JOHN
J. LUPE, Judge, presiding. Reversed and remanded with directions.
JUSTICE BRYANT DELIVERED THE OPINION OF THE COURT.
Rehearing denied June 5, 1958.
This appeal relates to (1) the right of the court to allow Edward L.S. Arkema, the intervening petitioner-appellee to intervene in this proceeding, and (2) the jurisdiction of the court to render a money decree or judgment in favor of the intervenor and against the plaintiff-appellant, Stanley Slusarz, in this proceeding.
The original proceeding was a complaint for partition filed by Stanley Slusarz, as plaintiff, against his wife, Harriet Slusarz, as principal defendant, alleging the joint ownership of improved property in the city of Chicago by the plaintiff and defendant, and requesting the customary relief in a partition complaint: that the property be divided between the owners; that if it was not susceptible to such division that it be appraised, sold and the proceeds divided between the parties as their several interests should appear. In addition to the joint owners of the property (the husband and wife), the complaint made all of the tenants in the rather large apartment building parties defendant, and the mortgage holders, and by proper allegations, unknown owners. It is to be noted that intervenor Arkema was not an original party defendant to the complaint.
The original complaint was filed on March 25, 1954. Less than three months thereafter, on June 15, 1954, intervening petitioner Arkema asked leave to file his intervening petition in the proceeding. He alleged that he was an attorney, and that Stanley Slusarz, and Harriet Slusarz, the principal defendant, were husband and wife; that for many years prior to May 1953 he had represented both of them in their legal matters and that from May 1953 onward they were having domestic difficulties, in part relating to the operation and management of the property which was the subject of this complaint for partition; that he was able to effect a temporary reconciliation between them and that there were subsequent breaks and reconciliations. He alleged that finally, on December 8, 1953, both parties consulted with him both asked him to represent them, and it was finally determined that defendant Harriet Slusarz should retain other counsel and that he should continue to represent the plaintiff, Stanley Slusarz, and that Stanley Slusarz would pay him the full amount due him for his services on behalf of both of said parties. He continued to represent Stanley Slusarz until March 1954, when he obtained other counsel, and that it was agreed that his reasonable fees, the amount of which was to be determined by the court, be paid him out of the share of the proceeds of Stanley Slusarz obtained from the sale of the property involved. He alleged that he had not been paid, and prayed that he be granted leave to intervene in this partition matter and a hearing be had to determine the amount reasonably due the petitioner, and that that amount be decreed to be paid out of the share of the proceeds of the sale of the property belonging to Stanley Slusarz. On that day, June 15, 1954, an order was entered without contest, showing that notice had been given to all parties in interest, allowing intervenor to file his petition, and giving the plaintiff, Stanley Slusarz, and the defendant Harriet Slusarz ten days to answer or otherwise plead.
Apparently nothing further transpired until November 30, 1955. On that day intervenor asked leave to file his supplement to the intervening petition, in which he alleged that neither the plaintiff nor the defendant had filed an answer to his original intervening petition, nor had they taken any steps to proceed with the suit for partition; that although they were living separate and apart at the time of the filing of the suit for partition, since the filing of the intervening petition they had made up their differences and were now living together as husband and wife; that they had failed to respond when the case appeared on the trial call, in the hope that it would be dismissed for want of prosecution, and his right as intervening petitioner to collect his money from the sale of the real estate in this proceeding would be defeated. He prayed that the court direct a hearing upon the intervening petition and the supplement thereto to determine the amount reasonably due and owing to him, and that execution issue upon said decree as in a judgment at law, and that by proper decree of the court said real estate be impressed with an equitable lien for the amount of said decree or decrees. This was a sworn petition. On that day, November 30, 1955, the court entered an order which found that due notice had been given all parties in interest, and then ordered inter alia that leave was given to file instanter the supplement to the intervening petition of the intervening petitioner Edward L.S. Arkema, and that the plaintiff Stanley Slusarz and the defendant Harriet Slusarz plead or answer to the said intervening petition and the supplement thereto within ten days.
On December 28th leave was given plaintiff's attorneys to withdraw and the time to answer the intervening petition was extended for an additional ten days.
On January 9, 1956 a new attorney filed his appearance for both the plaintiff Stanley Slusarz and the defendant Harriet Slusarz, and an order was entered giving them ten days to file their answer to the intervening petition and supplement thereto, and said counsel on their behalf in open court made an oral motion to dismiss the complaint for partition. The order of the court indicated that the motion to dismiss was entered, and a hearing on the motion to dismiss, upon the petition and supplement thereto and the pleas or answers thereto was set for February 10, 1956. On February 23, 1956, the joint answer of Stanley Slusarz, the plaintiff, and Harriet Slusarz, the defendant, to the intervening petition and supplemental petition of the petitioner Edward L.S. Arkema was filed in court. It set forth that the intervening petitioner Edward L.S. Arkema was not the attorney of record for either Stanley Slusarz, the plaintiff, or Harriet Slusarz, the defendant. This had not been alleged by Arkema and was not in dispute. It admitted that intervening petitioner had rendered services, but alleged they had been paid for. It alleged that there was pending before the court a motion of the plaintiff and the defendant to dismiss the partition suit, and that the dismissal of that suit on that motion would dispose of the entire case, including the intervening petitioner's petition. The answer did not deny the making of the agreement that the fees of the intervening petitioner were to be fixed by the court and that they were to be paid out of the proceeds of the sale of the real estate involved in the partition suit belonging to the plaintiff Stanley Slusarz.
On February 27th the intervening petitioner filed his reply to the answer and denied that he had been paid in full for his services, and realleged that he had not been paid any money whatsoever for his services rendered to the parties since May 6, 1953.
The claim which the intervenor urges is one for legal services rendered, and it is not connected in any way with the complaint in partition but antedated that. It is therefore not based upon any statutory provision for the allowance of attorneys' fees in partition matters. It has no relation whatsoever to the statutory attorney's lien where the attorney is allowed to keep property belonging to his client in his possession for the purpose of securing the payment of his fees. In the absence of any specific provision in regard to payment, the bill for the services of an attorney as fees is merely the bill of a common creditor. The intervening petitioner has here alleged that the plaintiff and defendant had agreed that the legal services which he rendered both of them after May 1953 was to be paid from that share of the proceeds of the property involved in this partition proceeding to which the plaintiff, Stanley Slusarz, would be entitled after the amount thereof had been determined by a court. The intervening petitioner has not been entirely consistent as to what rights he thought had been created by this agreement. In his original petition he asked that his reasonable fees be determined and the amount due him be decreed to be paid out of the proceeds of the sale of the property belonging to the plaintiff, Stanley Slusarz. In the supplement to his intervening petition he asks that the amount due him be determined and that execution issue as upon a judgment at law, and, that the real estate be impressed with an equitable lien for the amount of said decree, and in this court he has spoken of his rights as a special creditor without saying what a special creditor is or what his rights are, and claims a specific lien upon the real estate.
It is of course true that the provisions of the Civil Practice Act have been made to apply to all proceedings under the Partition Act, except as stated in the latter act. (Ill. Rev. Stats., 1955, chap. 106, par. 71.) It is equally true that those provisions do not change the substantive law in regard to the remedy of partition, and the jurisdiction of the subject matter which is effected by partition is the joint ownership of real estate (chap. 106, par. 44), and the remedy given, which is the division of the real estate or a sale of the real estate and the distribution of the proceeds thereof in accordance with the interests of the parties in the subject matter of the litigation as determined by the court.
Obviously the intervening petitioner was not a counterclaimant. He had been neither a plaintiff nor a defendant to the original action. He was not a party to that law suit. No remedy or relief was sought against him. He therefore was clearly not within the classification of persons under section 38 of the Civil Practice Act which permits the filing of counterclaims against other parties in the litigation.
Paragraph 1 of section 26.1 of chapter 110 Illinois Revised Statutes (Civil Practice Act), sets forth conditions under which applicant shall be permitted to intervene in an action. Sub-par. (c) of that paragraph is the only provision which might be applicable to the instant situation. It is as follows: "when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody or subject to the control or disposition of the court or an officer thereof." This of course contemplates that the applicant has some sort of an interest in or right to the property in the custody of the court which would be subject to distribution or disposition by the court. This is in harmony with the other provisions of the practice act in regard to the joinder of parties to a proceeding, which provide that both plaintiffs and defendants may be joined where they would be entitled to relief arising out of the same transaction or series of transactions. (Secs. 23 and 24.) The filing of an intervening petition involves the addition of a new party who claims to have some interest in the subject matter of the litigation. Here the jurisdiction of the subject matter of the litigation is the joint ownership of the land. The Joint Committee comments (Smith-Hurd Ill. Anno. Stats. 1955, ch. 110, sec. 26.1, pamphlet p. 32) indicate that the new intervention section was adopted from section 21 of the Missouri Code, which in turn is a revision of Federal Rule 24. In re Vaughan v. Dickinson, 19 FRD 323, D.C. Mich. S.D. 1955, quotes from Moore's Federal Practice, 2d ed., vol. 4, wherein the author poses the question: "What kind of an interest must a petitioner have in property subject to the control of a court before he can claim an absolute right to intervene?" His answer is: "Obviously it must be an interest known and protected by the law: a claim of ownership or a lessor interest, sufficient and of the type to be denominated by a lien, equitable or legal."
It is generally the law that one has no right to intervene in any action unless he has some right to protect an interest in that action which is not being protected. 39 Am.Jur., Parties, sec. 60, p. 934. That is especially true in cases of partition, where the subject-matter jurisdiction of the court is the joint ownership of the land. One of the earliest ...