Alexander v. Samuel Colcord.

• Citation: 85 Ill. 323,1877 WL 9548
• Parties: JEDIAH F. ALEXANDERv.SAMUEL COLCORD.
• Decision Date: 30 June 1877
• Court: Supreme Court of Illinois

85 Ill. 323

1877 WL 9548 (Ill.)

JEDIAH F. ALEXANDER

v.SAMUEL COLCORD.

Supreme Court of Illinois.

June Term, 1877.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Bond county; the Hon. WILLIAM H. SNYDER, Judge, presiding.

Appellant, in April, 1868, filed his bill in equity, against appellee, in the court below, alleging that he was lawfully possessed, as owner, of a certain tract of 46 1/2 acres of land, in the vicinity of Greenville, in Bond county; that appellee had been trespassing thereon, and was threatening further trespasses, by cutting and removing timber, wood, etc., from the land, and that he was insolvent. The prayer of the bill was, among other things, for a temporary injunction enjoining appellee from committing further trespasses on the land by cutting and removing timber, wood, etc., and from intruding upon the land, or in any manner interrupting appellant in the enjoyment of the peaceable possession of the land.

A temporary injunction was issued, in conformity with the prayer of the bill. The cause was continued until the April term, 1869, of the court, when appellee answered the bill, denying the trespasses charged against him, and justifying his acts as owner of the land, and the cause was then continued until the September term, 1869, of the court. At that term, appellee filed his cross-bill, setting up title to the land in himself, and alleging that appellant's pretended title was obtained with full knowledge of his prior title, and that it was void; and, also, that appellant had committed trespasses upon the land since the issuing of the temporary injunction in his behalf. The prayer was, that appellant be enjoined from trespassing upon or exercising acts of ownership over the land, and that his title be decreed void, etc. The cause was then continued until the May term, 1870, of the court, at which term appellant answered the cross-bill, denying appellee's title and asserting his own title to the land.

The cause, thereafter, was continued from term to term, until the September term, 1871, when, by agreement, it was continued to be heard, and was heard, in vacation after that term, and decree was entered as of that term. The decree dismissed appellee's cross-bill and granted the relief prayed in appellant's bill. An appeal was prosecuted to this court by appellee, and the record was brought here, and a hearing thereon had, at the June term, 1873, of this court. This court reversed the decree of the court below, and remanded the cause with directions to that court to dismiss appellant's bill and grant the prayer of appellee's cross-bill. See 67 Ill. 581.

At the September term, 1874, of the court below, the mandate of this court was carried out. Thereupon, appellee filed suggestions, in writing, of the damages sustained by reason of the injunction, and the hearing thereof was continued until the next term of the court. At the April term, 1875, of the court, appellee filed his amended suggestions, in writing, of the damages sustained by reason of the injunction, as follows:

+-----------------------------------------------------------------------------+
                ¦“By loss of the use of land in complainant's bill described, say 46 1/¦$2,100¦
                ¦2 acres, for six and one-half years, from April, 1868, to September,  ¦00    ¦
                ¦1874, seven seasons, at $300                                          ¦      ¦
                +----------------------------------------------------------------------+------¦
                ¦By cutting and carrying trees, loss of wood, etc.                     ¦250 00¦
                +----------------------------------------------------------------------+------¦
                ¦Amount of cash, time and labor expended in taking testimony, finding  ¦250 00¦
                ¦witnesses, etc                                                        ¦      ¦
                +----------------------------------------------------------------------+------¦
                ¦To cost of sand sold and carried away                                 ¦300 00¦
                +----------------------------------------------------------------------+------¦
                ¦To amount paid for printing briefs and record                         ¦84 37 ¦
                +----------------------------------------------------------------------+------¦
                ¦To amount paid attorneys and counsel fees                             ¦1,000 ¦
                ¦                                                                      ¦00    ¦
                +----------------------------------------------------------------------+------¦
                ¦Total                                                                 ¦$4,034¦
                ¦                                                                      ¦37”   ¦
                +-----------------------------------------------------------------------------+
                

Evidence was heard, and the court thereupon decreed that appellant pay to appellee, on account of such damages, $2500. The present appeal is prosecuted to reverse that decree.

Mr. J. M. HAMILL, and Mr. S. A. PHELPS, for the appellant.

Mr. GEORGE P. STRONG, for the appellee.

Mr. CHIEF JUSTICE SCHOLFIELD delivered the opinion of the Court:

We are of opinion the damages decreed to be paid by reason of the injunction are excessive.

It is impossible to determine, from the evidence preserved, the precise basis of the computation made by the court; but evidence respecting what must have been the principal items in the computation was, evidently, admitted under a misapprehension of the correct rule applicable in inquiries of this character.

Evidence was received of $25 paid to Messrs. Palmer and Hay, attorneys at law; but, instead of showing that they rendered services necessary to the dissolution of the injunction, it shows that they did nothing whatever in that direction. The payment seems to have been for advice given, not only before the bill for injunction was filed, but, probably, before appellant had acquired the title under which he made claim to the land.

Appellee testifies that he paid the firm of Ledergerber, Russell & Colcord, attorneys at law, $200, by crediting the note of one of the firm (Colcord) who was appellee's son, with that amount; but it appears that all that this firm did in the case was, to prepare and file appellee's answer. This was short, and required no unusual amount of care or legal skill in its preparation. No one pretends to say it was reasonably worth $200 to prepare and file it, and, from our knowledge of the record, we think appellant's evidence that $50 would have been a reasonable fee for that service is quite liberal.

Strong testifies that he was paid, in money and property, what he regarded as equivalent to $1000, for his services in the case, but how much of this was money, he does not state. Appellee, however, says he paid Strong by deeding him one-fourth of the land. Strong, also, says he considers a reasonable fee for his services, considering the land was worth from $5000 to $8000, would be from $750 to $1000, and in this he is corroborated by T. G. C. Davis. J. P. Colcord, son of appellee, an attorney at law,...