Cameron v. Boeger

• Decision Date: 16 December 1902
• Parties: CAMERON et al. v. BOEGER et al.
• Court: Illinois Supreme Court

200 Ill. 84

65 N.E. 690

CAMERON et al.

v.BOEGER et al.

Supreme Court of Illinois.

Dec. 16, 1902.

Appeal from appellate court, First district.

Suit by the Oakland Cemetery Association against Louise Boeger and others. From a judgment of the appellate court (102 Ill. App. 649) affirming a judgment denying to Ossian Cameron and others, attorneys for complainant, the right to intervene and have vacated the order dismissing the suit, they appeal. Affirmed.Ossian Cameron, Chester Firebaugh, and James J. Kelly, pro se.

Thatcher & Griffen, for appellees.

The following is a statement of the material facts in this case, as made by the appellate court:

‘The Oakland Cemetery Association filed its bill in the superior court against Louise Boeger et al. for an accounting as to the proceeds of the sale of certain lands therein described, and the specific performance of an alleged contract of sale by said Louise Boeger to one William Rauguth of a certain two hundred and forty acres of land, which contract, it was charged, had been assigned to said cemetery association. The defendants answered the bill, specifically denying the equities claimed, and the cause was referred to a master to take testimony and report. After much testimony had been taken, the complainant and Louise Boeger agreed upon a settlement, in pursuance of which Louise Boeger paid the association $2,500 in cash, receiving in return therefor a conveyance of one acre of land, and an agreement that the said suit should be dismissed, which was done the 2d of March, 1901. The dismissal was entered upon the filing of the following stipulation:

“I hereby enter my appearance as additional counsel for the complainant on this second day of March, 1901. N. H. Hanchette, or Counsel.'

“It is hereby stipulated by and between the parties to the above-entitled cause that said suit may be dismissed without costs to either party. The Oakland Cemetery Ass., by William Rauguth, Prest. February 20, 1901. [Corp. Seal.] Attest: Minnie Dietzel, Secy. N. H. Hanchette, of Counsel for Compl't. Thatcher & Griffen, Sols. for Defendants.'

‘Thereafter, upon the same day, under leave of court, the following written paper was filed in court:

“And now comes the complainant, and moves the court to set aside and vacate the order of dismissal this day entered in above case. Chester Firebaugh, Ossian Cameron, James J. Kelly, Solicitors for Complainants.'

‘Upon the same day it was ordered that the motion to vacate the order of dismissal of said cause be continued. April 8, 1901, an intervening petition was filed in said cause by Ossian Cameron, James J. Kelly, and Chester Firebaugh, appellants, none of whom were parties to the said cause, setting forth the making, at the date thereof, of the following agreement:

“Chicago, August 2, 1900. This article of agreement, made and entered into on this second day of August, A. D. 1900, by and between the Oakland Cemetery Association, a corporation, and William Rauguth, parties of the first part, and Ossian Cameron and Chester Firebaugh, parties of the second part, witnesseth as follows, to wit: Whereas, the said parties of the first part have a certain dispute or litigation with one William Boeger, Louise Boeger, his wife, Louis Boeger, his son, and one Fulton H. Sears, in regard to the rights of the first party hereto in and to all of the following described real estate, to wit: The west half (W. 1/2) of the northeast quarter (N. E. 1/4) and the northwest quarter (N. W. 1/4) of section twenty (20), all in township thirty-nine (39) north, of range twelve (12) east of the third principal meridian, situate in the county of Cook and state of Illinois; and whereas, it is necessary for the first party hereto, in order to obtain what the first party hereto claims to be his rights in and to all of said described real estate, to litigate the same with the said Boegers and the said Sears; and whereas, it is necessary for the first parties hereto to have attorneys and counsel to aid in and about prosecuting said litigation to obtain the rights and interests of the first parties hereto in and to said premises: Now, therefore, it is hereby stipulated and agreed that the said parties of the first part hereto do hereby employ, engage, and retain the said Ossian Cameron and the said Chester Firebaugh as the attorneys of the first parties hereto, to prosecute the said litigation; and it is hereby agreed that the said first parties hereto will from time to time advance and pay whatever costs or expenses may be necessary in and about the prosecution of the said litigation; and it is further hereby agreed that the said second parties hereto shall receive as their compensation for their services in and about the prosecution of said litigation on behalf of the first parties hereto, from the first parties hereto, one-third of whatever is realized or obtained as the result of any such litigation, or, if any settlement is made pending any such litigation, then the second parties hereto shall receive one-third of whatever amount is obtained or received as a settlement of said matters in litigation. The fees of the second party herein are contingent upon the result of said litigation, as above expressed; they to receive one-third, as aforesaid, of the avails of said litigation, or of any settlement which is made in the case. All expenses and costs of said litigation, as aforesaid, to be advanced and paid by the first parties thereto. It is understood that in case any settlement had in this case results in the first parties hereto, or either of them, obtaining the said lands and premises above set out, then the second parties hereto shall receive from time to time one-third of the benefits, avails, and net earnings of said business. Witness our hands and seals this second day of August, A. D. 1900.

“Oakland Cemetery Association.

“By William Rauguth, Pres. [Sea.]

“Minnie Dietzel, Secy.

“[Seal.]

William Rauguth. [Seal.]

“Ossian Cameron. [Seal.]

“Chester Firebaugh. [Seal.]

“James J. Kelly is hereby employed as associate counsel in above case on same terms as above expressed, and is to receive, in addition to or besides what Firebaugh and Cameron are to receive, one-sixth of the proceeds of above obligation, less a sum equal to the costs and expenses of said case. Oakland Cemetery Association, by William Rauguth, Pres. September 21, 1900.'

‘By the petition and affidavits in support thereof it was set forth that the petitioners had rendered services to the complainants, as solicitors for them in said suit, to the value of $20,000; that the Oakland Cemetery Association and William Rauguth are now, and were each at all times mentioned in the petition, totally insolvent, and have no effects or property out of which any debt of any kind could be collected; that the defendants to said bill have at all times known that the petitioners had a written agreement with the complainants, by which they (the petitioners) were to receive one-half the proceeds of said litigation; that, by collusion between the complainants and defendants, N. H. Hanchette was employed to appear as counsel for said complainants, and consent to the dismissal of said bill without notice to or knowledge by petitioners; that said dismissal was so made for the purpose of defrauding petitioners out of that compensation to which, under said agreement, they were lawfully and equitably entitled. The defendants demurred to said petition, which demurrer was sustained, and this suit dismissed; the court making the following finding: ‘The court, being fully advised in the premises, finds that the complainant herein, for the purpose of defrauding said Chester Firebaugh, Ossian Cameron, and James J. Kelly out of their fees as solicitors, made said stipulation to dismiss this suit without notice to said Firebaugh, Cameron, and Kelly, and, combining and confederating with the defendants for the purpose aforesaid, caused this suit to be dismissed for the purpose aforesaid. But the court finds that the contract for solicitors' fees between the complainants and the said Firebaugh, Cameron, and Kelly gave no interest in the subject-matter of the suit, and that the complainant had the right to dismiss its suit.’'

MAGRUDER, C. J. (after stating the facts).

1. Appellants were solicitors of the Oakland Cemetery Association, the complainant in the chancery suit referred to in the statement preceding this opinion, and filed the bill therein as such solicitors for the association. After the chancery suit had been put at issue by the filing of an answer to the bill and replication to the answer, the cause was referred to a master in chancery, before whom testimony was taken; and the...