Butterman v. Chamales
| Decision Date | 25 July 1966 |
| Docket Number | Gen. No. 50836 |
| Citation | 220 N.E.2d 81,73 Ill.App.2d 399 |
| Parties | Emmy S. BUTTERMAN, Appellant, v. Martha CHAMALES, Executrix of the Estate of Peter J. Chamales, Deceased, et al., Appellee. |
| Court | United States Appellate Court of Illinois |
Emmy S. Butterman, pro se.
Wiles, Johnson & Barrington, Howard, French & Healy, Chicago, for Estate of Peter J. Chamales.
This appeal concerns the dismissal of a claim filed by Emmy S. Butterman against the estate of a deceased attorney, Peter J. Chamales, and against the decedent's surviving partner in the practice of law. Claimant alleged that in May of 1962 she employed the decedent, paying him a retainer fee of $500, to pursue in her behalf litigation then pending in the Circuit Court of Cook County against a stock brokerage firm. In her original claim she charged that, 'through want of care and good faith, and/or wilful neglect,' decedent did not answer the trial call for the case, resulting in its dismissal for want of prosecution, and that decedent also failed to file a suit on claimant's behalf in the Federal District Court, permitting the Statute of Limitations to run. In her original claim against Chamales's estate, she sought 'actual' damages in the amount of $27,776.
Martha Chamales, Executrix of the Estate, moved to dismiss the claim on grounds that a malpractice claim does not survive the death of an attorney; that the claim failed to state facts showing that the litigation which decedent was retained to pursue constituted a good, valid, subsisting cause of action; and that the claim failed to state the basis for the allegation of damages in the amount of $27,776. While this motion was pending, claimant moved to join as a necessary party defendant decedent's surviving law partner. Martha Chamales moved to dismiss this attempted joinder on grounds that there was no authority to add a living person as a party defendant to a claim against an estate. This motion was granted on October 21, 1964. After requiring the parties to submit briefs on the motion to dismiss the original claim, but without taking evidence, the court entered an order on April 7, 1965, granting the motion to dismiss the claim, and granting leave to the claimant to file an amended claim. That claim, filed April 22, 1965, was based upon a theory of breach of an express contract of retainer, and sought damages in the amount of $30,317.95. Martha Chamales then moved to dismiss the amended claim, alleging that it was a new and different cause of action and therefore was barred because more than nine months had passed since the issuance of letters testamentary on June 9, 1964; that no copy of the contract had been attached to the claim; and that the claim stated no terms of the contract of what actions or inactions of the decedent allegedly constituted a breach of the contract. The amended claim was dismissed by order of April 28, 1965. Claimant has brought this appeal, Pro se, from the orders dismissing her original claim, dismissing her amended claim, preventing her from joining decedent's law partner as a party defendant, and denying her a rehearing.
The basic question presented by this appeal is whether an action for malpractice against an attorney can be commenced after his death and successfully maintained against his estate. At common law, actions in tort did not survive the death of the tort- feasor or of the injured party, Wilcox v. Bierd, 330 Ill. 571, 583, 162 N.E. 170; while actions for breach of contract survived the death of either party thereto, First National Bank of Danville v. Taylor, 329 Ill.App. 49, 55, 67 N.E.2d 306. In most jurisdictions, including Illinois, this sharp line of demarcation has been altered by statutory enactments which provide that certain types of tort actions shall also survive. The Illinois statute on this point is Ill.Rev.Stats., ch. 3, § 339 (1963), which reads:
§ 339. Action which Survive
In addition to the actions which survive by the common law, the following also survive: actions of replevin, actions to recover damages for an injury to the person (except slander and libel), actions to recover damages for an injury to real or personal property or...
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...(1972), 3 Ill.App.3d 396, 403, 279 N.E.2d 454.) At common law, the death of either party abated tort actions. Butterman v. Chamales (1966), 73 Ill.App.2d 399, 220 N.E.2d 81, 84. The Illinois Survival statute changed the common law to allow representatives of the deceased to maintain an acti......
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...(1972), 3 Ill.App.3d 396, 403, 279 N.E.2d 454.) At common law, the death of either party abated tort actions. Butterman v. Chamales (1966), 73 Ill.App.2d 399, 220 N.E.2d 81. The Illinois survival statute changed the common law to allow representatives of the deceased to maintain an action w......
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