Franklin Cnty. v. Layman

• Decision Date: 04 April 1893
• Citation: 33 N.E. 1094,145 Ill. 138
• Parties: FRANKLIN COUNTY v. LAYMAN et al.
• Court: Illinois Supreme Court

145 Ill. 138

33 N.E. 1094

FRANKLIN COUNTY

v.LAYMAN et al.¹

Supreme Court of Illinois.

April 4, 1893.

Appeal from appellate court, fourth district.

Assumpsit by Thomas J. Layman and William J. Allen against, the county of Franklin for attorneys' fees. Plaintiffs obtained judgment, which was affirmed by the appellate court. Defendant appeals. Affirmed.F. M. Youngblood, for appellant.

W. K. Murphy and W. J. N. Moyers, for appellees.

The other facts fully appear in the following statement by SHOPE, J.:

The county of Franklin issued to the Belleville & El Dorado Railroad Company 149 bonds of the county of the par value of $1,000 each, 49 of which purported to be issued by the county under an act of the general assembly of the state of Illinois, approved November 6, 1849, and 100 of such bonds purporting to be issued by the county under an act of the general assembly of the state entitled ‘An act to incorporate the Belleville and El Dorado Railroad Company,’ approved February 22, 1861. On the 22d day of May, 1880, the county authorities being desirous of testing the validity of said bonds, and the liability of the county for their payment, the board of county commissioners of said county entered into an agreement with appellees, attorneys at law, by which it was agreed on the part of appellees to commence the proper suit or suits and prosecute the same, as the attorneys of the county, without unreasonable delay, to a final determination against the holders of said bonds, and other proper persons. Appellees agreed, each, to give their personal attention to the prosecution and trial of said suit or suits, and to use due diligence, until final determination thereof in the state and federal courts. In consideration whereof the county agreed to pay to appellees $250 at the commencement of the suits, and if the suit or suits were finally determined in favor of the county, and said bonds held to be illegal and not collectible, then to pay appellees the additional sum of $8,000. But if said suit or suits were not decided in favor of the county, ‘and sustained in the courts,’ appellees were to receive nothing but the $250. Appellees were required to make application for, and secure, injunction against the collection of taxes, to pay said bonds. This contract was in vriting, and duly entered of record. Under this contract, appellees filed a bill, in the name of the county, in the Franklin county circuit court, against the auditor and treasurer of the state, said railroad company, the county clerk and treasurer of said county, and the unknown holders of the said several bonds. Such proceedings were had that on application of certain of the bondholders the cause was remanded to the United States circuit court for the southern district of illinois, and in June, 1882, was brought on for hearing. The case, however, was not decided until June, 1883. Bondholders representing 13 of the 49 bonds issued under the act of 1849, only, were before the court. It appears that said 13 of said 49 bonds issued under the act of 1849 were held to be illegal, and decree rendered conclusive upon the rights of the holders of said 13 bonds, and the bill dismissed without prejudice as to the residue of said 49 bonds so issued under the act of 1849. It also appears that holders of 36 bonds, only, of the $100,000 issued under the act of 1861, were before the court, and that the court rendered a decree finding the said bonds legal, and issued in conformity with law, and dismissing said bill as to said bonds. It appears, also, that in July, 1883, appellees reported to the county board of said county the foregoing facts, and advised the prosecution of an appeal from that part of the order or decree holding said bonds valid, and dismissing the bill, to the supreme court of the United States. The county board took the matter under advisement until in November, 1883, and then declined to prosecute an appeal.

On the 7th of November, 1883, there being no final adjudication in respect of the remaining 36 of said 49 bonds issued under the act of 1849, the county and appellees entered into the following agreement: ‘Agreement. It is hereby stipulated and agreed by and between William J. Allen and Thomas J. Layman, on the one part, and the county board of Franklin county, Illinois, that if a writ of error or appeal shall be prosecuted by defendants from the circuit court of the United States to the supreme court of the United States in case lately decided by the said court in case of the county of Franklin v. the Belleville and El Dorado Railroad Company et al., or from the circuit court of Franklin county, Illinois, to the supreme court of said state, or to the circuit or supreme court of the United States, wherein the bonds of said county are involved, in a suit decided at the October term, 1883, of said court, then and in that event said Wm. J. Allen and Thomas J. Layman are to appear in either of said tribunals for said county on the bearing of such writ of error or appeal, November 7th, 1883. This instrument is executed in view of settlement by said board this day with said Allen and Layman as to forty-nine county bonds declared void, and has no reference to the bonds issued by said county under the act of Feb'y 22, 1861; the said county hereby agreeing that if there is further litigation as to said bonds of 1861, and said Allen and Layman appear to have the same declared void, they are to be paid as per original contract, with reference thereto. William J. Allen. Thomas J. Layman.’ Upon the execution of which the county paid to appellees $2,634.24, as the testimony tends to show, in settlement for the services rendered and to be rendered in respect of said 49 bonds, and being, as it would seem, a proportionate part of the said sum of $8,000 agreed to be paid in the event of success in defeating the whole of the 149 bonds. It also appears that by subsequent proceeding in the state court the remaining 36 of said 49 bonds were decreed to be illegal, which has probably become res judicata.

On the trial of this cause the plaintiffs proved that at the same session of the board of commissioners of said county-the board refusing to appeal from the decree of the United States circuit court in respect of said $100,000 of bonds-said board entered into another contract with appellees in respect of said last-mentioned bonds. It is shown that the board feared that a hearing would be delayed on appeal to the supreme court of the United States, and in the mean time the county be subjected to the levy made by the auditor of public accounts for payment of these bonds. It seems to have been understood that a decision could be gotten quicker in the state courts. And it was thereupon agreed that if appellees would, as soon as practicable, obtain a decision of the supreme court of Illinois declaring the tax levied for the payment of said bonds illegal, the county would pay appellees the further sum of $5,365.76, being the balance of the sum originally agreed to be paid, less the amount that day paid them. It was talked over and agreed that the county would have one Richeson, or some other taxpayer, refuse to pay taxes levied to pay said bonds, and thereupon appellees should take charge of the litigation in endeavoring to enforce said tax, and prosecute the same through the supreme court. In 1884 the auditor levied a tax for such purpose upon the property of the county, whereupon said Richeson refused to pay the same, as assessed against his property, and, the same being returned delinquent, application was made by the collector to the county court of said county for judgment against the lands of said Richeson therefor. Appellees, under said employment by the county, appeared and filed objections on behalf of said Richeson, which were overruled by the court, and judgment entered for the tax. An appeal was prosecuted by Richeson to the supreme court of the state, where the tax was held to be unlawfully levied, upon the ground that said bonds, and each of them, were illegally issued, and that there was no binding liability upon the county to pay the same. Richeson v. People, 115 Ill. 450, 5 N. E. Rep. 121. The opinion in that case was filed in January, 1886; and the treasurer of the state, after the decision had been rendered, and said $100,000 had been declared by the state supreme court illegally issued and void, paid back to the county the taxes that had been levied by the auditor, and collected from the taxpayers of said county, to pay interest on said bonds, and amounting to $9,069, which was received by the county. In July, 1886, the county board, then being in session, by resolution, appropriated said sum of money, etc. At the time said last-mentioned agreement was entered into with appellees by the county authorities, one of the appellees suggested that a memorandum should be made of the contract, or that the board should, by proper entry upon its records, evidence the same. The...