Slusarz v. Slusarz

BURKE, P. J.,

dissenting:

The intervening petition of Edward L. S. Arkema, filed on June 15, 1954, pursuant to an order entered without opposition, asserted that he had performed services as a lawyer for both the plaintiff and the defendant, who agreed that the reasonable fee for his services would be paid by plaintiff out of his share of the proceeds from the sale of the realty sought to be partitioned. On November 30, 1955, the intervenor filed a “supplement” to his petition stating that neither party filed an answer or other pleading to his petition; that the parties had made up their differ- • enees; and that they had agreed upon a plan that they would not appear in court at any time the case should be called for trial in the hope that the suit would be dismissed for want of prosecution. The intervenor asked that he have judgment. On January 9, 1956, the parties moved to dismiss the complaint for partition. On February 23, 1956, they answered the intervening petition and supplement. The master to whom the case Avas referred found that the intervening petition was in the nature of a counterclaim and that the intervenor had performed services of a reasonable value of $7,500 which were to be paid by the plaintiff from his share of the proceeds from the sale of the real estate. The chancellor entered a decree finding that the parties’ motion to dismiss the intervening petition came too late; found the reasonable value for the services performed to be $3,250; allowed the motion to dismiss as to all parties except the intervenor; entered judgment in favor of the intervenor and against the plaintiff for $3,250; and provided that the master recover from the plaintiff and defendant $1,398.25 as his fees and costs.

The intervenor was an ordinary creditor claimant of the plaintiff. Hamilton v. Downer, 46 Ill. App. 541, 549; Bromwell v. Turner, 37 Ill. App. 561, 563. There does not appear to be any substantial dispute that the intervenor performed the services and that he is at least entitled to the amount granted him in the decree. The reasoning of the majority opinion is based upon procedural and not jurisdictional grounds. The parties had no objection to the filing of the intervening petition. They did not take any action from June 15, 1954, when the intervenor filed his petition, until January 9, 1956, when they moved to dismiss the complaint, and did not file an answer to the petition until February 23, 1956. It was not until then that they contended that the allowance of their motion for dismissal would render “further proceedings nugatory.” The master and the chancellor concluded that the dismissal of the complaint should not affect the right of the intervenor to have judgment for his fees.

If any of the original parties desires to contest the right to intervene, he must do so on the hearing of the petition. Fletcher’s Equity Pleading and Practice, Sec. 55, page 81; Ackley v. Croucher, 203 Ill. 530, 533, 534. The parties who should have objected in time will not be permitted to object out of time. The decree sustains the right of the parties to dismiss their case. The intervenor had the right to bring a common law action against the plaintiff for the reasonable value of his services. The court had jurisdiction of the subject matter and of the parties. The right of the parties to dismiss their suit did not affect the right of the intervenor to maintain his action for reasonable fees. In effect, the intervening petition became a distinct complaint against the parties. The fact that the claim of the intervenor was brought within the title and number of the original case does not obscure the fact that Arkema had the right to a trial of his law suit. It would not be reasonable under the circumstances to tell Arkema that he should go hence and file the identical claim as a separate suit. Had the parties, or one of them, objected to the filing of the intervening petition, Arkema would have had an opportunity to file a separate common law action. There was no demand for a jury trial. There was a fair trial. The record shows without contradiction that the intervenor performed the services and he proved the reasonable value thereof. Section 42 of the Civil Practice Act states that all defects in pleadings not objected to in the trial court are waived. The only ground alleged by the parties in their oral motion to dismiss the original complaint for partition was that they had settled their differences. There was no attack on the intervening petition as a pleading.

In considering the procedure followed in this case it is timely to note that Section 44 of the Civil Practice Act provides that any plaintiff or plaintiffs may join any causes of action, whether legal or equitable or both, against any defendant or defendants; that the court may order separate trial of any causes of action, counterclaim or third-party claim if it cannot be conveniently disposed of with the other issues of the case; that legal and equitable issues may be tried together if no jury is employed; and that any cause of action, counterclaim, third-party claim or issue may be transferred at any time, by order of the court, from the law docket to the equity docket, or vice versa, as the nature thereof may require. Section 4 of that Act directs that the Act shall be liberally construed to the end that controversies may be speedily and finally determined according to the substantive rights of the parties.

I am of the opinion that the decree should be affirmed.