Cameron v. Boeger

Mr. Justice Waterman delivered the opinion of the court. If the petitioners under their agreement with the Cemetery Company, or anything done thereunder, became possessed of an interest in the subject-matter of the suit, they could and properly should have made themselves parties thereto. In chancery, suits are properly conducted in the name of the real parties in interest. Did petitioners have an interest in the subject-matter of the suit? The agreement with petitioners was not an assignment to them of any portion of the subject-matter of the suit or that which might be obtained thereunder." The agreement was, that petitioners should receive from the Oakland Cemetery Association and William Bauguth a certain portion of whatever should be obtained or realized as the result of the litigation, or if any. settlement was made pending the litigation, petitioners were to receive the same proportion of that obtained by settlement. A settlement by the complainants was clearly contemplated by the agreement with petitioners. The distinction between an assignment or actual appropriation of the fund, or some portion of it, and a mere promise to pay a part tif a debt or fund out of the fund when collected, is clearly pointed out in Wyman v. Snyder, 112 Ill. 99-103; Story v. Hull et al., 143 Ill. 506-511; Bromell v. Turner, 37 Ill. App. 561; Trist v. Child, 21 Wallace, 441-447; Christmas v. Russell, 14 Wallace, 69, and Pomeroy’s Equity Jurisprudence, Section 1280. An attorney has in this State no lien for his fees and the client can dismiss his suit when he will. Henchey v. The City of Chicago, 41 Ill. 136; North Chicago Street Ry. Co. v. Ackley, 171 Ill. 100-113. The petitioners ask that in opposition to the wish of the complainants they be permitted to prosecute this suit; they insist that the complainants could not settle this litigation without the consent of their solicitors, because the complainants have agreed to give them a certain portion of that which may be recovered in the suit. There was no assignment of any portion of the fund to petitioners or any of them: They therefore have not shown themselves to be entitled to be made parties to the suit in which they were solicitors. The decree and order of the Superior Court is affirmed. • Hr. Justice Freeman dissents.