Comm'rs of Lincoln Park v. Schmidt

• Decision Date: 20 November 1946
• Docket Number: No. 29694.,29694.
• Citation: 395 Ill. 316,69 N.E.2d 869
• Parties: COMMISSIONERS OF LINCOLN PARK v. SCHMIDT et al.
• Court: Illinois Supreme Court

395 Ill. 316

69 N.E.2d 869

COMMISSIONERS OF LINCOLN PARK

v.SCHMIDT et al.

No. 29694.

Supreme Court of Illinois.

Nov. 20, 1946.

Appeal from Superior Court, Cook County; Joseph A. Graber, judge.

Condemnation proceeding by the Commissioners of Lincoln Park against Adolph Schmidt and others. The commissioners abandoned the proceeding, and Adolph Schmidt and others filed a petition for allowance of costs, expenses, and reasonable attorney fees. Adolph Schmidt died, and his executors were substituted as parties defendant in his place. From the judgment, the commissioners appeal, and the executors and others cross-appeal.

Reversed and judgment entered.

Philip A. Lozowick and Winston, Strawn & Shaw, all of Chicago (John D. Black and Edward J.Wendrow, both of Chicago, of counsel), for appellant.

Orr, Lewis & Orr and Urion, Bishop & Sladkey, all of Chicago (Warren H. Orr, Howard F. Bishop, Wallace W. Orr, and Haskell F. Lamm, all of Chicago, of counsel), for appellees.

PER CURIAM.

This case is before the court for the fourth time. In Com'rs of Lincoln Park v. Schmidt, 375 Ill. 474, 31 N.E.2d 969, we held that a trial court could not grant a new trial because of errors induced by the party moving for such trial. The cause was reversed and remanded to the trial court with directions to enter a judgment on the verdict. Upon the remandment the judgment was entered in the sum of $32,550, which, with interest, aggregated a total sum of $46,947.55. In Com'rs of Lincoln Park v. Schmidt, 379 Ill. 130, 39 N.E.2d 1012, we held this was a final judgment; laid down the rule of law pertaining to the finality of matters decided on a previous appeal upon a second appeal involving the same question, and approved the judgment of the trial court in including interest on the verdict. On March 20, 1942, the commissioners filed a petition to abandon the proceeding, which was eventually allowed on July 13, 1943.

After the filing of the petition to abandon the appellees filed a petition for the allowance of costs, expenses and reasonable attorney fees authorized by section 10 of the Eminent Domain Act. ( Ill.Rev.Stat.1945, chap. 47, par. 10). In the meantime Schmidt had died, and the right to have fees allowed on behalf of the executors of the deceased was resisted by appellant because of his death, and the trial court dismissed the petition for allowance of fees for this reason. Upon appeal, in Com'rs of Lincoln Park v. Schmidt, 386 Ill. 550, 54 N.E.2d 525, we held the right of the landowner to costs, expenses and reasonable attorney fees survived his death, and reversed the cause, with directions to finally fix and determine all costs, expenses and reasonable attorney fees of Adolph Schmidt and his executors. A hearing was had upon this question. The appellees demanded as costs, expenses and reasonable attorney fees the sum of $59,287.18. The trial court entered a judgment for the expense of experts the sum of $1775, instead of $6500 as claimed; allowed expenses for all attorneys of $3137.85; and allowed as attorneys' fees for two attorneys employed in the case $22,500, making a total allowance for costs, expenses and attorneys' fees of $27,412.85, instead of the amount demanded. The Commissioners of Lincoln Park have appealed on the ground that no fees, costs or expenses should be allowed for reasons hereinafter pointed out, and appellees have filed a cross appeal on the ground that the allowance should have been made for the full amount claimed. Under section 12 of the Eminent Domain Act (Ill.Rev.Stat.1945, chap. 47, par. 12), the appeal comes directly to this court.

This case has been in court over eighteen years. A petition in eminent domain was filed on September 27, 1928, and the verdict of the jury was rendered on May 17, 1932. A motion for a new trial was made immediately thereafter, but not disposed of until July 6, 1940. The first appeal to this court was decided February 14, 1941, and it has been back and forth between the trial court and this court until the present time. It is time it was finally disposed of. It is a reproach to the administration of justice that a case of this character could be in court for any substantial part of the period involved, without final disposition.

Most of the points involved have already been decided by this court. We decided the question of interest in Com'rs of Lincoln Park v. Schmidt, 379 Ill. 130, 39 N.E.2d 1012. And we specifically held that the appellees were entitled to costs, expenses and reasonable attorneys fees in Com'rs of Lincoln Park v. Schmidt, 386 Ill. 550, 54 N.E.2d 525, 532. In the latter case we reversed the superior court in dismissing the petition for costs, expenses and fees, with directions ‘to complete such hearings as may be necessary to finally fix and determine all costs, expenses and reasonable attorney's fees of Adolph Schmidt and his executors in accordance with section 10 of the Eminent Domain Act.’ We therefore hold appellees were entitled to recover the items fixed by statute. Com'rs of Lincoln Park v. Schmidt, 379 Ill. 130, 39 N.E.2d 1012. In our judgment the only question left open was the amount.

It is claimed that the order of the probate court in opening up the administration of the estate to inventory additional personal estate, viz., the amount of fees and allowances to which the estate was entitled upon the dismissal of the petition for condemnation was invalid because the executors knew of this asset long before the estate was opened up. The statute (Ill.Rev.Stat.1945, chap. 3, par. 356) authorizes administration of an estate to be opened up upon the discovery of new assets, and claims filed too late to participate in the original estate may participate in such additional assets. A probate court is a court of general jurisdiction, and the rule is uniform that an order and decree made by a probate court is entitled to the same protection against collateral attack as the judgments of other courts of general jurisdiction. People v. Medart, 166 Ill. 348, 46 N.E. 1095;Dickinson v. Belden, 268 Ill. 105, 108 N.E. 1011;Christianson v. County of King, 239 U.S. 356, 36 S.Ct. 114, 60 L.Ed. 327;First Nat. Bank v. Bangs, 91 Kan. 54, 136 P. 915; Phillips v. Phoenix Trust Co., 332 Mo. 327, 58 S.W.2d 318. The validity of this order, therefore, cannot be questioned in this proceeding, which is entirely collateral to the proceeding in which the order was made by the probate court of Cook county.

This brings up for consideration what may be allowed as costs, expenses and reasonable attorneys' fees, and the reasonable amount thereof. Costs were not allowed at common law, and since the adoption of the statute permitting the allowance of costs it is strictly construed as being in derogation of the common law. Winterstreen v. National Cooperage & Woodenware Co., 361 Ill. 95, 197 N.E. 578. We have also held expert witnesses are in the same position as other witnesses with respect to their fees (Hutchinson v. Hutchinson, 152 Ill. 347, 38 N.E. 926), and that an expert can be compelled to testify despite his objection that he is entitled to be paid on the basis of being an expert. Dixon v. People, 168 Ill. 179, 48 N.E. 108,39 L.R.A. 116;Philler v. Waukesha County, 139 Wis. 211, 120 N.W. 829, 25 L.R.A., N.S., 1040, 131 Am.St.Rep. 1055,17 Ann.Cas. 712; 2 A.L.R. 1576.

The general rule of costs does not apply in eminent domain cases where the petitioner abandons the proceedings, by reason of the provisions of section 10 of the Eminent Domain Act. That section of the statute provides when and how judgment shall be entered, and the right to enter upon the property subject to the following provisions: ‘Provided, That in case the petitioner shall dismiss said petition before the entry of such order or shall fail to make payment of full compensation within the time named in such order, that then such court or judge shall, upon application of the defendantts to said petition or either of them, make such order in such cause for the payment by the petitioner of all costs, expenses and reasonable attorney fees of such defendant or defendants paid or incurred by such defendant or defendants in defense of said petition, as upon the hearing of such application shall be right and just, and also for the payment of the taxable costs.'

Analyzing this provision we find the allowance is for ‘reasonable attorney fees,’ and that ‘costs, expenses' and attorney fees ‘shall be right and just,’ in addition to taxable costs. Such expenses and fees must have been paid or incurred by the defendant, and it also must be in defense of the petition to exercise eminent domain.

The entire amount claimed by appellees is $59,287.18. Of this amount $41,798.33 appears to be attorney fees, and the balance the charge of experts and miscellaneous expenses. As pointed out above, the court made a total allowance of $27,412.85. Both appellant and appellees are dissatisfied.

In the case of Forest Preserve Dist. v. Kean, 303 Ill. 293, 135 N.E. 415, we considered the effect of section 10 of the Eminent Domain Act. In that case the petitioner failed to pay the judgment within the time fixed by the order, which entitled the property owner to fees the same as an abandonment of the proceeding entitled him to them. In that case reasonable attorney fees, costs and expenses incurred and paid in defense of the condemnation suit were allowed but the petition for fees that were incurred on the appeal in the Supreme Court was denied. We held that the provision of the statute is for the payment by the petitioner of all costs, expenses and...