APPEAL from the Circuit Court of Cook County; the Hon. WARREN
D. WOLFSON, Judge, presiding.
MR. JUSTICE PERLIN DELIVERED THE OPINION OF THE COURT:
Rehearing denied March 11, 1981.
Defendants appeal from an order of the circuit court of Cook County granting plaintiffs' motion for voluntary dismissal and taxing as costs to plaintiffs the appearance fees and jury demand fees incurred by defendants. The sole issue presented for review is whether the trial court erred in denying defendants' request for the imposition of additional expenses incurred by them. A summary of the necessary facts follows.
These consolidated cases arise from the crash of an aircraft manufactured by Beech Aircraft Corporation. *fn1 After extensive discovery the cases were assigned for trial on January 29, 1980. On February 11, 1980, plaintiffs moved for a six-month continuance in order to complete their investigation of a recent unrelated airplane crash in Canada. Plaintiffs' motion was denied. Plaintiffs thereafter moved for a voluntary dismissal pursuant to section 52 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52), indicating an intention to refile pursuant to section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a). In response to plaintiffs' motion for voluntary dismissal, defendants urged that the court dismiss plaintiffs' cases with prejudice and without leave to refile. Defendants urged in the alternative that the court "condition" any dismissal or refiling upon plaintiffs' payment to them of "their filing fees, jury demand fees, witness fees, costs of depositions, costs of transcripts, expert costs and related expenses and such other and further costs that the court considers just under these circumstances and in the exercise of its discretion." Defendants indicated that these costs "must include some substantial portion of the more than $1 million plaintiffs have forced the defendants to expend." Defendants estimated their expenses relating to the depositions as approximately $200,000.
• 1 Judge Wolfson granted plaintiffs' motion for voluntary dismissal and taxed as costs to plaintiffs the appearance fees and jury demand fees incurred by defendants in the amount of $219. In denying defendants' request for the imposition of the additional expenses he further remarked:
"I don't see the legal authority to do anything more than enter the order for costs contained in the clerk's bill. * * * if I thought I had the authority I would do something more."
Section 52(1) of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52) provides:
"The plaintiff may, at any time before trial or hearing begins, upon notice to each party who has appeared or his attorney, and upon payment of costs, dismiss his action or any part thereof as to any defendant, without prejudice, by order filed in the cause. Thereafter he may dismiss, only on terms fixed by the court (a) upon filing a stipulation to that effect signed by the defendant, or (b) on motion specifying the ground for dismissal, which shall be supported by affidavit or other proof. After a counterclaim has been pleaded by a defendant no dismissal may be had as to him except by his consent."
The language of section 52 is clear and unequivocal. Upon proper notice and payment of costs, a plaintiff has what numerous cases have referred to as an "absolute right" to dismiss his action before a trial or hearing has begun. E.g., City of Palos Heights v. Village of Worth (1975), 29 Ill. App.3d 746, 749, 331 N.E.2d 190; Gilbert-Hodgman, Inc. v. Chicago Thoroughbred Enterprises, Inc. (1974), 17 Ill. App.3d 460, 461, 308 N.E.2d 164.
• 2 At common law costs were not recoverable. Therefore costs can now be imposed and recovered only where authorized by statute. (Adams v. Silfen (1951), 342 Ill. App. 415, 419, 96 N.E.2d 628.) Statutes which authorize the taxation of costs are penal in their nature, and unless authority to tax them is clearly granted by statute, their allowance cannot be sustained. (Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 108, 197 N.E. 578; Adams v. Silfen (1951), 342 Ill. App. 415, 419-20.) Section 52 does not define costs. However, in House of Vision v. Hiyane (1969), 42 Ill.2d 45, 51-52, 245 N.E.2d 468, our supreme court opined:
"Our oft-stated view is that, in the absence of statute (with exceptions not here germane) attorneys' fees and the ordinary expenses and burdens of litigation are not allowable to the successful party."
Defendants urge this court to modify our supreme court's decision in House of Vision v. Hiyane by expanding the definition of costs to include certain expenses incurred in pretrial discovery. In support of this argument defendants contend that Supreme Court Rule 208 (Ill. Rev. Stat. 1979, ch. 110A, par. 208) confers upon the trial court "the discretion to award fees and charges incurred in taking of depositions as `costs'." Supreme Court Rule 208 provides:
"(a) Who Shall Pay. The party at whose instance the deposition is taken shall pay the fees of the witness and of the officer and the charges of the recorder or stenographer for attending. The party at whose request a deposition is transcribed and filed shall pay the charges for transcription and filing. The party at whose request a tape recorded deposition is filed without having been transcribed shall pay the charges for filing, and if such deposition is subsequently transcribed the party requesting it shall pay the charges for such transcription. If, however, the scope of the examination by any other party exceeds the scope of examination by the party at whose instance the deposition is taken, the fees and charges due to the excess shall be summarily taxed by the court and paid by the other party.
(b) Amount. The officer taking and certifying a deposition is entitled to any fees provided by statute, together with the reasonable and necessary charges for a recorder or stenographer for attending and transcribing the deposition. Every witness attending before the officer is entitled to the fees and mileage ...