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Feiertag v. Reichmann

MARCH 23, 1959.

MAEVUS FEIERTAG, ALSO KNOWN AS MAVIS FEIERTAG, PLAINTIFF-APPELLEE,

v.

JOSEPH REICHMANN, ET AL., DEFENDANTS-APPELLEES. APPEAL OF KATHERINE E. NOVA, ET AL., PETITIONERS-APPELLANTS.



Appeal from the Circuit Court of Cook county; the Hon. CORNELIUS J. HARRINGTON, Judge, presiding. Affirmed.

JUSTICE DEMPSEY DELIVERED THE OPINION OF THE COURT.

There are two appeals. One is by Katherine Nova from an order denying her petition to intervene in the case of Feiertag v. Reichmann. The other is by Borgmeier and Murphy, attorneys who represented the plaintiff; they seek to continue the suit, which had been voluntarily dismissed by the plaintiff, in order to protect their rights under a contingent fee contract.

The complaint, to set aside certain deeds as clouds on the plaintiff's title and for other relief, was filed April 12, 1957. In October 1957, the plaintiff advised the court that she wished to dismiss her suit. Her attorneys protested. They revealed that on April 13, 1957, the plaintiff quitclaimed a one-half interest in the property to Nova and also gave her "exclusive control over the law suit." They said they represented Nova and moved to make her an additional party plaintiff. The court permitted dismissal and denied intervention.

The arguments of both appellant and appellees center around sec. 26.1(1)(b) of the Civil Practice Act (ch. 110, Ill. Rev. Stats. 1957), which states:

"(1) Upon timely application anyone shall be permitted as of right to intervene in an action: . . . (b) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant will or may be bound by a judgment, decree or order in the action; . . . ."

The appellant insists it was her right to intervene and that the court was without discretion.

The right to intervene under this section is not unqualified; all provisions of sec. 26.1 must be met. One of these is that the application be timely; another is par. (5), which requires the presentation of the pleading or motion which the applicant proposes to file.

The application was not timely. Although the transfer was made the day after the complaint was filed, the appellant's one-half interest was not revealed to the court until six months later and then only when the plaintiff dismissed her suit. In June 1957, two months after the execution of the quitclaim, a seventeen-page amended complaint was filed. Despite the fact that the same attorneys represented the plaintiff and Nova, no mention was made in the amended complaint of the latter's interest. If the plaintiff and Nova had different counsel there might be less significance to this omission; but here there was a community of knowledge, and it would have been normal and natural for the interest to have been disclosed at that time.

Par. (5) of sec. 26.1 provides:

"A person desiring to intervene shall present a petition setting forth the grounds for intervention, accompanied by the initial pleading or motion which he proposes to file."

This paragraph codified the practice in our courts prior to the adoption of the Civil Practice Act. Strader v. Board of Education of Community Unit School Dist. No. 1 of Coles County, 351 Ill. App. 438; Hyland v. 79 West Monroe Corp., 2 Ill. App.2d 83. The record shows that no pleading or motion accompanied the petition to intervene. Even if the appellant wanted to adopt the plaintiff's complaint it would have been necessary to present some pleading to this effect.

The appellant did not comply with necessary requirements of sec. 26.1 and the court was correct in denying her petition.

The appellant also argues that she had the right to enter the case at any time, even before or after judgment, under sec. 26 of the Civil Practice Act. This section pertains to the misjoinder and non-joinder of parties and not to the right of intervention. It has no application here. Neither, under the circumstances of this case, does sec. 25 which was mentioned in oral argument.

Another section of the Civil Practice Act, however, has been held to be applicable. Our court has held that where an interest is acquired by a voluntary transfer after a suit has started, as in this case, sec. ...


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