delivered the opinion of the court.
Counsel for the complainant insist, in their petition for rehearing, that the question of complainant’s right to have his expenditures and liabilities for expert accountants, stenographers and attorneys, in and about the investigation and prosecution of this bill, allowed as a first lien upon any and all moneys recoverable by these proceedings, was not fully discussed in the original briefs, and they now strenuously insist that such expenditures have often been allowed in cases like the present one. We have examined the cases in this State cited as having a bearing on this question, as well as many others not cited, and we are of the opinion that all the cases in Illinois come within either the rule, or the exception to the rule, as stated by Mr. Justice Hand, in the opinion filed in the case of Wilson v. Clayburgh, 215 Ill. 506. In that case the court said: “It has been repeatedly held in this State that nothing can be allowed and taxed as costs by the clerk or the court, but items of cost designated by the statute to be so allowed and taxed.” (Citing authorities.) “The only exception to this rule in this State is in cases brought by trustees for the construction of wills, where a will is so ambiguous as to make it necessary to go into a court of chancery to obtain a construction thereof, in which class of cases the costs of the litigation must be borne by the estate.” (Citing authorities.)
Among the cases cited as coming within the exception are several of those cited in complainant’s petition for rehearing. The case of Abend v. Endowment Fund Commission, 174 Ill. 96, also comes within the exception. The case of Aldrich v. Maher, 153 Ill. App. 413, is more nearly like the present case, as will appear by reference to the decision of the Supreme Court in the same case (Maher v. Aldrich, 205 Ill. 242); but in that case, the right to solicitors ’ fees was denied, upon the authority of Wilson v. Clayburgh, supra, and similar cases. We see no reason in anything advanced in the petition for rehearing to change the opinion heretofore filed, as to this question.
Complainant’s counsel also contend, as to this provision in the decree, that the White City Construction Company, the party directly interested, neither objected nor excepted to this provision and did not appeal or assign any error thereto, and further, that no assignment of error by Joseph Beifeld could question or put it within the power of the Appellate Court to consider the question as to this provision in the decree. In the case of Kavanagh v. Bank of America, 239 Ill. 404, a stockholders’ bill was filed by Kavanagh and a receiver appointed. Later, an intervening petition was filed and an order entered upon it which only indirectly effected Kavanagh’s interest as a stockholder. He prosecuted an appeal, and his right thereto being questioned on substantially the same grounds as those urged on the petition for rehearing in this case, our Supreme Court, in sustaining his right to appeal, said (p. 406) :
“The complainant had a right to appeal because he was a party and the decree affected adversely his interest as a stockholder.”
In the case at bar, Joseph Beifeld was a party and also a stockholder, whose interests, as the record shows, would be adversely affected by the provision in this decree. The decision in the case of Kavanagh v. Bank of America, supra, is controlling on this contention of the complainant.
Counsel for complainant further contend that defendant Joseph Beifeld did not properly assign error on the ruling of the court on this provision in the decree, and also that such error, even if properly assigned, was waived because of the failure to raise an issue thereon in the printed briefs and arguments. We are satisfied, from a careful review of the record, that error was properly assigned as to this provision in the decree, and while but slight mention of such error is made in the printed briefs and argument, this point was urged on the oral argument of the case. We are therefore of the opinion that it was properly submitted for our consideration.
Counsel for defendants have also filed a petition for rehearing, in which they request the court to express an opinion as to the allowance of interest on items charged against the defendants. We are of the opinion that the statute provides for the allowance of such interest, as for “money received to the use of another, and retained without the owner’s knowledge.” Rev. St. ch. 74, Sec. 2 (J. & A. ¶ 6691.) The right to the allowance of interest in such cases was affirmed in Lehmann v. Rothbarth, 111 Ill. 185, practically upon this ground, although the statute was not mentioned in the opinion filed in that case. As to the question of costs in the Circuit Court, we see no good reason for disturbing the decree.
The petitions for rehearing will be denied.
Rehearing denied.