Zoore v. Terhune

Mr. Justice Duncan delivered the opinion of the court. This was an appeal from a justice of the peace court, and on a trial before the County Court without a jury, judgment was rendered in favor of defendants in error and against A. C. Terhune, plaintiff in error, for $12 as damages and for $15 as attorney fees and for costs of suit. The record-shows that John Moore and Charley Cockrum began this suit jointly against the defendant to recover for wages due them on an alleged contract to plaster a house for plaintiff in error. Before the trial in the County Court Charley Cockrum died, and his death being suggested on the record, B. B. Cockrum; as his administrator, was substituted as party plaintiff, and the suit proceeded to judgment with Moore and said administrator as joint plaintiffs. The theory for joining Moore and Cockrum as plaintiffs seems to have been grounded on the supposition that they were partners in this contract of employment. The evidence for plaintiffs only tends to prove that Moore and Cockrum were each separately hired by the defendant at $1.50 per day and that they worked-four days each. No joint interest of any kind in the $12, for which judgment was rendered, is shown by this record. The only evidence tending to show a joint right to sue is one statement of Mr. Moore in his evidence that “We were sorter partners.” This was stated in answer to the court’s question: “Were you and Mr. Cockrum partners in this work?” All the other evidence as to their employment shows separate contracts, and that there was no partnership between them. It is elementary that an action at law can only be maintained by the party or parties in whom the legal title exists, and no party should be joined as plaintiff who has not a joint interest with the other plaintiffs in the-subject of litigation in actions ex contractu. Dix v. Mercantile Ins. Co., 22 Ill. 272; Frye v. Bank of Ill., 5 Gilm. 332. If they had been partners, on the death of Cockrum, Moore, the surviving partner, would have taken the exclusive title to this debt and all other assets for the payment of partnership debts, and the right to sue for same would have devolved upon him. Miller v. Jones, 39 Ill. 54; Finnegan v. Allen, 60 Ill. App. 354. A demand, to be legal and binding on the defendant and to entitle plaintiff to attorney’s fees in a suit for wages by a mechanic, must be in writing, must be made on defendant at least three days before suit is brought and must be for a sum not exceeding the amount found to be due and owing. Hurd’s Rev. Statutes of 1905, par. 13, chap. 13. No such demand was proven in this case, and under the evidence in this record no attorney fee should have been allowed. The statute must be complied with in every particular to entitle a plaintiff to recover attorney’s fees. The judgment of the lower court might have been reversed pro forma for failure of defendants in error to file briefs in accordance with our rule No. 27, but we prefer in this case to decide it on its merits as the cause will have to be remanded. It is clear that if defendants in error have any right of action against the plaintiff in error, they must maintain separate suits against him. For the errors indicated in the foregoing, the judgment is reversed and the cause remanded. Reversed and remanded.