Appeal from the Superior Court of Cook County; the Hon. ALAN
E. ASHCRAFT, Judge, presiding. Affirmed.
MR. JUSTICE BURMAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied November 20, 1961.
This appeal is from an order of the Superior Court of Cook County dismissing a complaint, charging the defendant with corrupt and wrongful acts in violation of his duty as attorney for the plaintiff. The appeal was taken directly to the Supreme Court which transferred the case to this court.
The sworn pleadings consist of a complaint, a bill of particulars, an answer and a reply. The matter was heard on defendant's motion for involuntary dismissal, or in the alternative, for judgment on the pleadings or summary judgment.
It appears from the pleadings that defendant filed two lawsuits for plaintiff on July 12, 1951. One suit was against John Rousiotis for $2550 which plaintiff claimed he had given to Rousiotis for safekeeping. The second suit was against plaintiff's brother, John Skontos, seeking a partnership accounting.
The complaint in the instant case, filed on May 11, 1959, alleged inter alia that defendant in August, 1951, possessed funds belonging to plaintiff in the amount of $2500 and until January 6, 1955, "used for his own purposes and to his own ends" the aforementioned money. On information and belief plaintiff further charged that defendant, with intent to control and use plaintiff's money, induced John Skontos to cause plaintiff to be adjudicated incompetent in the County Court. Plaintiff claimed also that defendant, for the same purpose, petitioned the Probate Court to appoint a conservator for plaintiff's estate, and that defendant's wrongful acts caused the funds to be reduced in the Probate Court from $2500 to the sum of $2102.46. Concerning the partnership accounting suit against his brother, plaintiff alleged that the case was dismissed for want of prosecution on April 23, 1954; that after defendant had the cause reinstated he corruptly refused to prosecute it and withdrew as plaintiff's attorney without giving an account "for his acts and doings in said cause" although he had received a retainer in advance for the filing of both suits. Plaintiff claimed that by reason of defendant's wrongful conduct plaintiff was deprived of the use of his $2500, deprived of his civil rights, and compelled to spend a large sum of money in an endeavor to recover his money and to restore his civil rights. Thus he prayed for judgment against defendant in the sum of $100,000 with malice as the gist of the action.
Pursuant to an order of court, plaintiff subsequently filed a bill of particulars which recited, in part, that on motion of defendant the lawsuit against Rousiotis was dismissed on August 9, 1951, without costs, and that plaintiff specifically claimed special damages in the sum of $1170 for expenditures in his endeavor to restore his civil rights and recover his money.
Defendant filed a voluminous answer and attached numerous verified exhibits. His pertinent allegations of fact are as follows: Plaintiff retained him to file the two lawsuits mentioned in the complaint and gave him $225 for costs and retainer. Defendant received a cashier's check dated August 2, 1951, in the sum of $2500 in settlement of the Rousiotis case. An attached photostatic copy of the check shows that it was payable to the order of John Skontos. On the back of the check appears the limited endorsement "pay to the order of John C. Gekas" signed by John Skontos. Beneath that appears the following endorsement: "pay to the order of Nikitas Nomikos conservator of the estate of Peter Skontos," and below it appears the signature of Nomikos followed by the words "Cons. Est. of Peter Skontos." The stamped endorsement and bank records show the check to have been deposited on October 2, 1953, by Nikitas Nomikos, conservator for plaintiff. Another attached exhibit was the affidavit of Nomikos stating that on September 28, 1953, the Probate Court appointed him conservator for the plaintiff, and that he received from the defendant the $2500 cashier's check, dated August 2, 1951, which he deposited to the account of Peter Skontos, incompetent, with himself as conservator. Other exhibits attached reveal that an inventory was filed in the Probate Court on November 29, 1954, listing as assets the $2500 cashier's check and the pending lawsuit against John Skontos for a partnership accounting, and that Nomikos filed a final account showing deductions of $40 for a conservator's bond, $31 for court costs, $100 in payments to and for the incompetent, and $175 paid to defendant for attorney's fees, leaving a balance of $2154 which was paid over to the Chicago City Bank & Trust Co., as the successor conservator.
Defendant denied that he caused plaintiff to be declared incompetent and attached a copy of a police report dated November 9, 1952, revealing that plaintiff was apprehended for causing a disturbance, on the complaint of his brother John, and due to his violent behavior was taken by the police to the Psychopathic Hospital. The attached transcript of the proceedings in the County Court reveals that after a hearing plaintiff was declared "a mentally ill person, incapable of managing and caring for his own estate" and was committed to the care of his brother, John Skontos. Also attached were a copy of the petition for restoration filed by plaintiff in the County Court on December 8, 1954, and verified by his present counsel, wherein plaintiff stated that he was "fully recovered" as evidenced by a doctor's certificate, and a copy of the order restoring him as a sane person.
The answer further alleged that on January 5, 1955, plaintiff filed his petition in the Probate Court for revocation of the letters of conservatorship. The attached copy of the petition sets forth the County Court order of restoration and states "that the Chicago City Bank & Trust Company submits its first and final account as conservator of the estate of your petitioner which is acceptable to this petitioner." The attached copy of the Probate Court order revoking the conservatorship recites that the conservator appeared and filed its final account, that the Ward has been restored to reason and has received a full settlement of his estate, and that the Ward "has examined said final account and found the same to be true and correct; also acknowledges the receipt of estate consenting to the approval of said final account." Defendant's answer also pleads the statute of limitations as a bar to plaintiff's claim.
Plaintiff's lengthy reply primarily reaffirmed the allegations of the complaint. It is replete with derogatory accusations against defendant which are ill suited to proper pleading. Additionally, it charges that the County Court order of incompetency is void because it was not the result of a hearing in conformity with the requirements of Article II, Section 2, of the Illinois constitution and with the Due Process requirements of the Federal Constitution; that the Probate Court orders appointing a conservator and his successor are void because plaintiff was never given notice of the conservatorship proceedings; and that plaintiff was not at any time incompetent.
After an extensive hearing, the trial court, finding that there was no genuine issue of fact, granted defendant's motion for dismissal. That ruling was based upon alternative grounds; any cause of action plaintiff might have had is now barred by the statute of limitations, and apart from that statute, plaintiff failed to allege facts sufficient to state a cause of action.
Plaintiff contends that the trial court erred in determining from the pleadings that there was no triable issue of fact. He argues also that because the relation of attorney and client is one of special trust and confidence plaintiff's suit cannot be barred by the statute of limitations.
It is quite clear that a motion under Section 57 of the Illinois Civil Practice Act is not intended to be used as a means of trying an issue of fact. "If, upon examination of the pleadings and affidavits, it can be fairly said that a material dispute exists as to the facts, a motion for summary judgment should be denied. (Barkhausen v. Naugher, 395 Ill. 562, 70 N.E.2d 565; Shirley v. Ellis Drier Co., 379 Ill. 105, 39 N.E.2d 329; Diversey Liquidating Corp. v. Neunkirchen, 370 Ill. 523, 19 N.E.2d 363.) On the other hand, where the pleadings and affidavits show there is no triable issue of fact, a summary ...