Lilly v. Shaw

Mr. Justice McAllister delivered the opinion of the Court: This was a proceeding by bill, in the Richland circuit courts filed on behalf of appellants and Malinda E. Grout, as the widow and heirs at law of Thomas W. Lilly, deceased, for the assignment of dower and partition. • The suit was commenced as an amicable one, the parties in the first instance being all represented by Shaw, Hayward & Kitchell, solicitors. Soon after the first steps were taken in the cause, conflicting, adverse interests were developed, and appellants were required to employ solicitors for themselves. The initiative of hostilities was taken on behalf of Malinda Grout, one of the two heirs at law, with whom her husband was joined as a party, with whom also appellees and Kitchell took sides, and from thence to the final decree in the cause at the October term, 1869, exclusively represented them in opposition to appellants. The decree at that term was final, covering the entire subject matter of the suit, the question of costs, determining the proportion each party was to pay. Upon the lapse of that term, the cause ceased to be pending. At the October term, 1870, one term, at least, intervening, Shaw and Hayward, two of the three solicitors, who had, after the commencement of the suit, exclusively represented the interests of Malinda Grout and her husband, made an application to the- court, upon motion, but without any notice to appellants, for an allowance of counsel fees to them, in the cause, which had gone to a final decree at the October term, 1869, upon which the court, as appears by the record, made the following order, viz: “ And it being shown by the evidence that the estate of Thomas W. Lilly was- valued at $40,000, at least, an allowance of $1200 is allowed Aaron Shaw and Horace Hayward for fees, one sixth to be paid by the widow, and the remainder by the said Sarah Chable and Malinda Grout, in equal proportions of $500 each. ” On the next day after its entry, a motion was made on behalf of appellants to set the order aside, and on the same day the following entry of record appears: “ And after evidence heard, the allowance and judgment of yesterday is affirmed.” The questions arising upon this record, are, first, whether such an alteration of the decree at a subsequent term, upon motion, is allowable; and, second, whether the case was one within the purpose and intention of the statute of 1869, respecting the allowance of counsel fees in suits for partition. It is a general rule, that when a decree is regularly obtained and enrolled, it can not be altered, except by bill of review. 2 Daniell’s Ch. Pr. 1221, 1232; Bennett v. Winter, 2 Johns. Ch. 205; Wiser v. Blakely, id. 488; Mead v. Armes, 3 Vermont, 148; Millspaugh v. McBride, 7 Paige, 509; Bramlette v. Picket, 2 A. K. Marshall, 11. The English practice of enrollment, which has substantially gone into disuse in that country, has never been adopted in this State, and the only effect of enrollment seems to have been that, before enrollment, the decree was not regarded as a record, was subject to be altered by the court itself, upon k rehearing; while a decree which had been enrolled, was not susceptible of alteration, except in a court of appeals, or by bill of review. But the courts of this country, where a practice obtains similar to ours, consider a decree as enrolled, or, in other words, as a complete record, when it is regularly entered, and the term at which it was so entered has elapsed. Burch v. Scott, 1 Bland, 120 S. C.; 1 Gill & Johns. 393; Dexter v. Arnold, 5 Mason, 303, 310; Whiting v. Bank of United States, 13 Peters, 6, 13. The exceptions to the rule disallowing alterations or amendments of a decree after the lapse of the term, upon motion, are substantially the same as in cases of judgments at law, and are confined to mere clerical errors, or of form, or in respect to matters quite of course. 2 Dan. Ch. Pr. 1233. As to amendments of judgments, see Coughran v. Gutcheus, 18 Ill. 391; United States Bank v. Moss, 6 How. (U. S.) 31, and cases there cited. It was no more allowable for the court, at a subsequent term, to alter the decree in respect to costs, than as to the partition of the property, or the measure of the widow’s dower therein. In Coleman v. Surell, 2 Cox, 206, Lord Thurlow would not allow a decree to be varied by giving costs to a defendant who was a mere trustee, and, as such, would have been entitled to them, if they had been asked for at the hearing. In Weston v. Haggerston, Coop. Rep. 134, Lord Eldon held that, all errors on the face of the schedules could be rectified, even after enrollment, bnt that there could be no correction, except of such apparent errors; and he therefore held, that no affidavit introducing a new fact, after enrollment, could be permitted. We are clearly of opinion, therefore, that it was not competent for the court to alter the decree of the October term, 1869, upon motion made at the October term, 1870; that such a practice would divest judgments and decrees of all sanctity; that it is against public policy, because, if allowable, there could be no definite limit to litigation. The order having been made for the payment by appellants of this large sum of money, without any notice to them, was void upon principles of natural justice, without reference to any other considerations. But, aside from all other questions, the case was not within the purview of the statute of 1869. In Kilgour v. Crawford, 51 Ill. 250, it was held, that the act should be construed as intending the taxation of counsel fees only in cases where the proceedings are amicable. It does not affect the question, that this was begun as an amicable suit, when it immediately developed into the ordinary case of adverse parties. The court surely could hot have intended to allow appellees, two of the three solicitors who filed the petition, the enormous sum of $1200 for merely filing the petition. If he did not, then the order is to compel appellants to pay for the services of counsel whose principal efforts were on behalf of the opposite party, and against them. It would be a novel addition to the quantum meruit count, for professional services, to go into our form books running thus: “For the work, labor and professional services of plaintiff, as an attorney at law, done and performed as such attorney in a certain suit lately pending, etc., of A B against the said defendant, at the request of, for, and in behalf of the said A B.” The principle of such a count would be precisely the same as that of the allowance in question. It, no doubt, has happened that the services of attorneys at law, rendered upon the retainer of one party, were of great value to the opposite, party. But it appears from the record that the services of appellees were not of that kind. They were evidently bestowed with zeal, ability and effect against appellants. The statute in question was not designed as an instrument of injustice, or to throw the rights of parties into confusion. Why are appellees any more entitled to such an allowance than the solicitors for appellants ? Then, what has become of Kitchell’s right to compensation ? Counsel say that he has since died, but appellees did not apply as survivors, or show that their rights were several, not joint, with' those of Kitchell. If appellees could rightfully have their allowance one year after the decree, the other solicitors may, two years after. Besides the irregularities pointed out, there is still another. The §1200 allowance was not made as costs taxed in the cause, but appellees were introduced as new parties 'into the record, upon mere motion. That sum was allowed to them by name, and they would be entitled to execution in their favor, if the order were allowed to stand. The order making such allowance must be reversed. Order reversed.