Habberton v. Habberton

• Decision Date: 14 June 1895
• Citation: Habberton v. Habberton, 156 Ill. 444, 41 N.E. 222 (Ill. 1895)
• Parties: HABBERTON et al. v. HABBERTON.
• Court: Illinois Supreme Court

156 Ill. 444

41 N.E. 222

HABBERTON et al.

v.HABBERTON.¹

Supreme Court of Illinois.

June 14, 1895.

Appeal from appellate court, Fourth district.

Bill for partition by Sarah L. Habberton against W. P. Habberton and others. There was a decree of partition, which allowed a solicitor's fee, and this decree was affirmed by the appellate court. Defendants appeal. Affirmed.

Mundy & Organ, for appellants.

Creighton & Kramer, for appellee.

CRAIG, J.

This is a writ of error to appellate court to reverse a judgment of that court affirming a decree of the circuit court of Wabash county allowing a solicitor's fee of $450 in favor of complainant's solicitor, William T. Bonham, in a proceeding for partition of lands brought by Sarah L. Habberton against W. P. Habberton et al. in the circuit court of Wabash county.

In 1889, section 40 of the act of 1874, in regard to partition, was amended to read as follows: ‘In all proceedings for the partition of real estate, when the rights and interests of all the parties in interest are properly set forth in the petition or bill, the court shall apportion the costs, including a reasonable solicitor's fee, among the parties in interest in the suit, so that each party shall pay his or her equitable portion thereof, unless the defendants, or some of them, shall interpose a good and substantial defense to said bill or petition; in such case the party or parties making such substantial defense shall recover their costs against the complainant according to equity.’ Laws 1889, p. 215. Under this statute, it is apparent that the court is not authorized to apportion solicitor's fees among the parties when the bill or petition fails properly to set out the rights and interests of all persons in the lands, or when some one of the defendants shall interpose a good and substantial defense. But, on the other hand, where the rights and interests of all the parties are properly set out in the bill or petition, and where no defendant shall interpose a good and substantial defense, then solicitor's fees may be apportioned against all the owners. The object of the statute seems to be to allow an apportionment of solicitor's fees against all persons in interest in such cases, and such only where it is not necessary for the defendants, or any of them, to employ counsel to protect their interest in the lands.

Here the bill as originally filed failed to set out correctly the rights and interests of the different owners of the lands, but this defect was obviated by an amendment of the bill. It is true an answer was prepared and filed for the purpose of correcting the allegations of the bill in regard to the interest of the owners. But, as to the necessity of filing an answer and the facts in regard to the amendment of the bill, the court, from the evidence, made the following finding: ‘That the filing of the amended bill by complainant's attorney notified the attorneys for the defendants that he proposed amending his bill so as to correctly...