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Boss v. Coe Inv. Co.

JANUARY 22, 1964.




Appeal from the Circuit Court of Sangamon County; the Hon. DeWITT S. CROW and SAMUEL O. SMITH, Judges, presiding. Affirmed.


Three causes have been consolidated for the purpose of appeal. In order to fully understand this case a certain amount of background material is necessary.

On August 16, 1955, a judgment by confession in the amount of $3,307.65 plus $511.15 attorneys' fees was entered in the Circuit Court of Sangamon County in favor of Coe Investment Co. and against Florence Boss and C.J. Boss. The judgment was entered upon a judgment note dated July 13, 1955. Thereafter the judgment was opened up and defendants were given leave to answer. The answer filed denied the allegations of the complaint alleging consideration, delivery and authority to confess judgment and alleged that defendants had been induced to execute and deliver the note in question by fraudulent representations of the plaintiff, made with intent to deceive, and relied on by defendants.

The issues thus made were tried three times by a jury. On the first trial the jurors were unable to agree on a verdict. The second trial resulted in a verdict for defendants but the trial judge set the verdict aside and granted a new trial because of the giving of erroneous instructions. The third trial resulted in a verdict for defendants and judgment was entered on this verdict. We affirmed this judgment in Coe Investment Co. v. Boss, 30 Ill. App.2d 113, 173 N.E.2d 743. During the course of this litigation Florence Boss died and is not involved in the present appeal.

Following the affirmance of the judgment entered after the third trial, C.J. Boss filed a motion in the original suit to fix and tax as costs his reasonable attorneys' fees and expenses incurred in defending the suit through three jury trials. To this motion Coe Investment Company filed a motion to strike. The motion of C.J. Boss to tax as costs his reasonable attorneys' fees and expenses was on April 5, 1963, nunc pro tunc as of March 15, 1963, denied by the trial court and an appeal (which is one of the appeals involved herein) was taken by C.J. Boss.

At the time the foregoing motion of C.J. Boss was denied, there was pending in the Circuit Court of Sangamon County an original complaint by C.J. Boss against Coe Investment Company, seeking the same relief as was sought in the foregoing motion. There was on file a motion by Coe Investment Company to strike this complaint and dismiss the action. On April 4, 1963, this motion was allowed and, plaintiff electing to stand on the complaint, final judgment was entered against plaintiff. An appeal (which is the second appeal involved herein) was taken by C.J. Boss.

Thereafter on April 10, 1963, a motion was filed in the latter case by Coe Investment Company to tax its attorney's fees against C.J. Boss which was denied. An appeal was taken from this order by Coe Investment Company (which is the third appeal involved herein). This appeal appears to have been abandoned by Coe Investment Company in the briefs filed herein.

The question presented by this appeal is: where a judgment by confession is opened up to permit a defendant to answer and where by the answer the defense that defendant was induced to execute the note by false representations of plaintiff is alleged, which defense is ultimately sustained, may the successful defendant recover from the plaintiff his reasonable expenses and attorney's fees incurred in defending the suit on the note?

The leading case in Illinois dealing with this problem is Ritter v. Ritter, 381 Ill. 549, 46 N.E.2d 41. In that case two individuals purchased two pieces of property at a foreclosure sale. The certificate of purchase for the two properties was issued to them as joint tenants. The two individuals agreed that in the event of no redemption one of the individuals would take one of the pieces of property and the other individual take the other property. Prior to the expiration of the period of redemption, one of the individuals became critically ill and during that fatal illness he asked the other individual whether his heirs would have any difficulty in securing his property if there was no redemption. He was assured that the agreement would be carried out. Subsequently, after the redemption period expired, the surviving joint tenant refused to convey pursuant to the agreement. A suit was then brought by the heirs charging that the surviving joint tenant had wrongfully, fraudulently and with intent to cheat, refused to carry out the agreement and that a constructive trust arose. The heirs were successful in this suit and then sought to recover from defendant their attorney's fees and expenses. In discussing the question the court said:

"There is no principle of the common law that permits a successful litigant to recover from his losing adversary the costs and expenses of the litigation. . . .

"The allowance and recovery of costs rests entirely upon statutory provisions and no liability for costs exists in the absence of statutory authorization. Any party to an action, claiming the right to recover costs from his adversary, must found his right upon some provision of a statute. This has been the law in this State from the earliest time. . . .

"The rule is also well established that attorney fees and the ordinary expenses and burdens of litigation are not allowable to the successful party in the absence of a statute, or in the absence of some agreement or stipulation specially authorizing the allowance thereof, and this rule applies equally in courts of law and in courts of equity."

There, as in the case at bar, an attempt was made to circumvent these general rules by insisting that the necessity of the successful party in security services of counsel and incurring expenses was brought about by the wrongful conduct of the unsuccessful party. In disposing of this contention the court said:

"The plaintiffs argue that they are entitled to recover in a separate action because the wrongful conduct of the defendant caused them to engage in litigation with him to secure a return of their property and that as a proximate result of the defendant's wrongful conduct they were damaged to the extent of the loss of time, attorney fees and other expenses expended by them in the first litigation. This reasoning is based on the concept that the wrongful acts of the defendant created a liability over and above his liability in the original action, i.e., a tort liability to pay the expenses of the plaintiffs in enforcing their rights in the ...

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