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Talley v. Alton Box Board Co.

JULY 6, 1962.




Appeal from the Circuit Court of Madison County; the Hon. JAMES O. MONROE, Jr., Judge, presiding. Judgment affirmed.


Rehearing denied October 22, 1962.

This was originally a suit in chancery, brought by several corporations, seeking an injunction to restrain certain proceedings in the County Court, involving a claim for large attorney fees. Attorney Talley, hereafter referred to as plaintiff, filed as part of his answer, certain claims for damages, alleging that the corporations were guilty of libel in their charges against him, in the County Court pleadings. These counts were dismissed on motion, and final judgment entered thereon against plaintiff in February, 1961.

That judgment was set aside on plaintiff's motion within 30 days, apparently on the argument that a law judgment cannot be entered in a chancery suit. There were decisions to that effect in the days of common law pleading, but that rule is deemed abolished under modern practice. Westerfield v. Redmer, 310 Ill. App. 246, 33 N.E.2d 744.

There ensued several hearings and rulings dismissing the libel counts. The defendants filed a motion in this court to dismiss the appeal, on the ground the notice of appeal had not been filed in due time. When the February judgment was set aside in due time, it left the pleadings as though no judgment was ever entered. Carey-Lombard Lumber Co. v. Daugherty, 125 Ill. App. 258. The subsequent orders dismissing the libel counts were not final judgments, since plaintiff had a right to ask leave to amend. In September, there was not only the order of dismissal, but also a final judgment that plaintiff take nothing on these counts. The notice of appeal was filed within 60 days thereafter. Therefore, the motion to dismiss this appeal has been denied, and we proceed to consider the merits of the case.

The factual background of the present litigation is as follows: The Wood River Drainage and Levee District, of Madison County, had previously obtained an assessment of about $1,750,000 for a river project. Early in 1957 the drainage commissioners filed a petition in the County Court for a large additional assessment. Numerous property owners filed objections, and the litigation extended over a period of about three years, with a resulting order for an additional assessment of about $800,000 and directing the preparation of the assessment roll.

The commissioners then filed in the pending proceeding, a petition for approval of and direction to pay to plaintiff, Talley, a partial attorney fee for services to date, in the aggregate of about $57,000 and asking the court to direct the payment of the balance due thereon, "or such an additional amount as the Court may deem to be reasonable," etc.

An exhibit attached to this petition consisted of 34 pages of items, purporting to be the legal services for which the charges were made. The additional abstract shows that there were included a large number of hours of conferences, at $25 per hour. Some of these hours were with opposing counsel, but there appear to be many hours listed of conferences with officers or employees of various companies with property in the district.

Objections to this petition regarding attorney fees were filed in the County Court by Alton Box Board Company, Unit Rail Anchor Company, Inc., Beall Tool Division and International Shoe Company, American Smelting & Refining Company, Laclede Steel Company, Owens-Illinois Glass Company, Shell Oil and Standard Oil Companies, Illinois Power Company, Illinois Terminal Railroad Company, and Sinclair Oil Company. These are the companies now being sued for libel, therefore, for convenience, they are referred to herein as "defendants."

The objections included statements that the court, when it ordered the additional assessment, had fixed the amount of attorney fees at $53,500 as required to the completion of the work which should not now be changed; that there was no showing the amount realized from the assessment would be sufficient to pay any more than that; that any allowance should be limited to funds to become available; that the fees claimed did not apportion the amount for services on increased annual maintenance, for which the attorney had been paid $400 per month, and for the portion allocable to some other fund; that much of the time was on matters personal between the attorney and certain objectors, and not for the needs of the district. There was included the following paragraph, here quoted in full, since it is the nub of plaintiff's complaint:

"That the itemization of legal services as contained in said petition covers much time spent by the attorney for the Commissioners in direct negotiations with various personnel of corporations dealing with the District, when such corporations were then represented by legal counsel requiring dealings and negotiations by the attorney for the District with the respective attorneys for the parties with whom the District was dealing. That such conduct is proscribed by applicable canons of ethics pertaining to the practice of law, and compensation from public moneys derived by taxation should not be available for payment thereof."

On this appeal, the plaintiff contends that the allegations of this paragraph are libelous per se, and that they are not privileged, because (a) the County Court did not have jurisdiction to hear such a matter, and (b) the allegations were not pertinent or relevant to the litigation. The Circuit Court ruled against him on both points.

The argument about jurisdiction seems to be based on the fact that the County Court has no power to disbar an attorney, nor even to prohibit him from practice in that particular court. There was no attempt being made to disbar anyone, nor was there any suggestion that any attorney be suspended from practice in that court. The matter before the County Court in which this pleading was filed, was a drainage matter, in which the plaintiff in this suit was the attorney who filed the commissioners' petition to approve his fees, to be paid out of public funds. We cannot take seriously his contention that the court had no jurisdiction of the proceedings then before it. The point is rejected as having no merit.

The principal argument is that the reference to professional ethics was not relevant, pertinent or material to the matter in controversy; and that violation of the Canons of Ethics does not bar the right to fees, nor in any way affect the lawyer's right to payment. In considering this question, we are not passing on whether legal conduct may be relevant in the technical sense, that is, whether it would be an actual defense to ...

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