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Galowich v. Beech Aircraft Corp.





Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Warren Wolfson, Judge, presiding.


Rehearing denied October 1, 1982.

The sole issue presented by this appeal is whether the trial court properly refused to tax, as costs to the plaintiffs, the expenses of depositions taken by the defendants where plaintiffs voluntarily dismissed their case before trial pursuant to section 52 of the Civil Practice Act (Ill. Rev. Stat. 1979, ch. 110, par. 52).

This case arose from the death of Jerald Galowich on February 15, 1975, in the crash of an aircraft manufactured by Beech Aircraft Corporation. Suits were filed by Deena Galowich, the widow, for whom Ronald Galowich, executor of decedent's estate, was later substituted as plaintiff, and by Ronald H. Galowich Associates against Beech and several manufacturers of components of the airplane. The cases were consolidated and after extensive discovery were assigned for trial on January 29, 1980. On February 11, 1980, the plaintiffs moved to continue the case for six months in order to investigate a recent plane crash in Canada, which they believed would provide important extrinsic evidence. The circuit court denied the motion. Plaintiffs then moved for a voluntary dismissal pursuant to Civil Practice Act section 52, indicating an intention to refile pursuant to section 24 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 24a).

The defendants objected to the motion for dismissal and urged that the court dismiss the case with prejudice. In the alternative, the defendants argued that the court had discretion to impose costs beyond the usual items contained in the clerk's bill, and requested that the court "condition" the dismissal upon plaintiffs' payment to them of "their filing fees, jury demand fees, witness fees, costs of depositions, costs of transcripts, experts costs and related expenses," which defendants characterized as an "unjustified burden" that plaintiffs had imposed upon them.

The circuit court entered an order dismissing the case and taxing as costs to plaintiffs the defendants' appearance and jury demand fees, in the amount of $219. The defendants appealed from the order, insofar as it denied recovery of any of defendants' deposition expenses, estimated by defendants at some $200,000.

The appellate court reversed, holding that Supreme Court Rule 208(d) (73 Ill.2d R. 208(d)) authorizes the trial court, in its discretion, to tax as costs expenses incurred in taking depositions, when a plaintiff moves for a voluntary dismissal pursuant to section 52. (93 Ill. App.3d 690.) We granted plaintiffs' petition for leave to appeal.

The plaintiffs argue that an order dismissing a case on motion of the plaintiff pursuant to section 52 is not an appealable order, and that the appellate court therefore should not have entertained the defendants' appeal. While this court has never directly addressed the issue, "[t]here are numerous rulings to the effect that a dismissal may be final for the purpose of appeal although it is without prejudice to the bringing of another action." (4 Am.Jur.2d Appeal & Error sec. 108 (1962); see Brauer Machine & Supply Co. v. Parkhill Truck Co. (1943), 383 Ill. 569, 575-76; Mutual Reserve Fund Life Association v. Smith (1897), 169 Ill. 264, 265; Restatement of Judgments sec. 41, comment b (1942).) In Williams v. Breitung (1905), 216 Ill. 299, the court held that the defendant could not appeal from an order dismissing the plaintiff's bill for an injunction on plaintiff's motion and at his costs, because the decree was entirely in the defendant's favor. The court noted, however, that the defendant would have a right of appeal "where the court, entering the judgment, has committed some error prejudicial to him, or where by the judgment he has not obtained all that he is entitled to." 216 Ill. 299, 303.

We need not decide this issue, however, since the appeal here is solely from that part of the order taxing costs against the plaintiff. A judgment for costs is a money judgment enforceable by execution (Ill. Rev. Stat. 1979, ch. 33, pars. 7, 16, 18), and is clearly appealable. (Adams v. Silfen (1951), 342 Ill. App. 415; Gilbert-Hodgman, Inc. v. Chicago Thoroughbred Enterprises, Inc. (1974), 17 Ill. App.3d 460; see City of Alton v. County Court (1959), 16 Ill.2d 23, 29 (orders allowing attorney fees).) For this reason our recent decision in Flores v. Dugan (1982), 91 Ill.2d 108, that an order dismissing a case for want of prosecution is not final and appealable, is not controlling here.

At common law, a successful litigant was not entitled to recover from his opponent the costs and expenses of the litigation. The allowance and recovery of costs is therefore entirely dependent on statutory authorization. (Ritter v. Ritter (1943), 381 Ill. 549, 552; Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 108.) Only those items designated by statute to be allowable can be taxed as costs. (Ryerson v. Apland (1941), 378 Ill. 472, 477.) While the power to impose costs must ultimately be found in some statute, the legislature may grant the power in general terms to the courts>, which in turn may make rules or orders under which costs may be taxed and imposed. Wintersteen v. National Cooperage & Woodenware Co. (1935), 361 Ill. 95, 108.

Upon voluntary dismissal by a plaintiff before trial, the statutes provide that the defendant shall recover his costs. (Ill. Rev. Stat. 1979, ch. 33, par. 16; Ill Rev. Stat. 1979, ch. 110, par. 52.) The Illinois costs statute (Ill. Rev. Stat. 1979, ch. 33, par. 1 et seq.) does not itself provide a definition of "costs" or state what items of costs are allowable. By Civil Practice Act section 3 (Ill. Rev. Stat. 1979, ch. 110, par. 3), the supreme court is authorized to provide by rule for the orderly and expeditious administration of the Act, including the assessment of costs. In Supreme Court Rule 208(d) the court provided that certain expenses specified in the rule, incurred in taking, transcribing and filing depositions, may, in the discretion of the trial court, be taxed as costs. 73 Ill.2d R. 208(d).

Neither this court nor the appellate court has previously construed Rule 208(d). However, statutory provisions or rules authorizing the taxation of deposition expenses are not unique to Illinois, and an examination of decisions from other jurisdictions is helpful in determining when deposition expenses are properly regarded as part of taxable costs.

The decisions surveyed adopt one of two basic positions. In a number of States the rule is that deposition expenses may be taxed to the losing litigant as a part of costs only when the deposition was necessary for use and actually used at trial. (Barrett v. Singer Co. (1979), 60 Ohio St.2d 7, 396 N.E.2d 218; Casey v. Williams (1971), 87 Nev. 137, 482 P.2d 824; Kendall v. Curl (1960), 222 Or. 329, 353 P.2d 227; Platts v. Arney (1955), 46 Wn.2d 122, 278 P.2d 657; Morrison-Maierle, Inc. v. Selsco (1980), ___ Mont. ___, 606 P.2d 1085; Morris v. Redak (1951), 124 Colo. 27, 234 P.2d 908; Wood v. Gautier (1968), 201 Kan. 74, 439 P.2d 73.) Another group of States allows the taxation of deposition expenses, even though the deposition was not used at trial, if the deposition was taken in good faith and was actually or reasonably necessary for preparation of the case or for the protection of the prevailing party's rights. Stocker v. Wells (1952), 155 Neb. ...

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