{ "id": 5345477, "name": "Norbert L. Hutchens et al., d/b/a Hutchens and Mann, Plaintiff-Appellee, v. James Wade, Defendant-Appellee-(James Wade, as Sheriff of Pike County, Defendant-Appellant.)", "name_abbreviation": "Hutchens v. Wade", "decision_date": "1973-08-13", "docket_number": "No. 11804", "first_page": "787", "last_page": "791", "citations": [ { "type": "official", "cite": "13 Ill. App. 3d 787" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "11 N.E.2d 955", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "367 Ill. 446", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2577265 ], "pin_cites": [ { "page": "p. 450" } ], "opinion_index": 0, "case_paths": [ "/ill/367/0446-01" ] }, { "cite": "63 N.E. 391", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 0 }, { "cite": "195 Ill 540", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 5585150 ], "opinion_index": 0, "case_paths": [ "/ill/195/0540-01" ] }, { "cite": "66 Ill. 481", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2624961 ], "opinion_index": 0, "case_paths": [ "/ill/66/0481-01" ] }, { "cite": "51 N.E.2d 161", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "384 Ill. 287", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2491442 ], "opinion_index": 0, "case_paths": [ "/ill/384/0287-01" ] }, { "cite": "184 Ill. App. 638", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 2842314 ], "opinion_index": 0, "case_paths": [ "/ill-app/184/0638-01" ] }, { "cite": "114 N.E.2d 785", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1914, "opinion_index": 0 }, { "cite": "415 Ill. 499", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 2684689 ], "year": 1914, "opinion_index": 0, "case_paths": [ "/ill/415/0499-01" ] }, { "cite": "273 N.E.2d 380", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "49 Ill.2d 14", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 2911062 ], "opinion_index": 0, "case_paths": [ "/ill-2d/49/0014-01" ] }, { "cite": "92 N.E. 291", "category": "reporters:state_regional", "reporter": "N.E.", "year": 1971, "opinion_index": 0 }, { "cite": "245 Ill. 496", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 3408196 ], "year": 1971, "opinion_index": 0, "case_paths": [ "/ill/245/0496-01" ] }, { "cite": "244 N.E. 2d 209", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "104 Ill.App.2d 426", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 1601089 ], "opinion_index": 0, "case_paths": [ "/ill-app-2d/104/0426-01" ] } ], "analysis": { "cardinality": 432, "char_count": 6868, "ocr_confidence": 0.747, "pagerank": { "raw": 1.8987344715849855e-07, "percentile": 0.7300147614783719 }, "sha256": "44c46a09f5a3637dfaaa4695e22374980bdce7c8b79cfaaf1824c4ec503b1ef0", "simhash": "1:861b4f2c000e6678", "word_count": 1145 }, "last_updated": "2023-07-14T21:56:28.394088+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Norbert L. Hutchens et al., d/b/a Hutchens and Mann, Plaintiff-Appellee, v. James Wade, Defendant-Appellee\u2014(James Wade, as Sheriff of Pike County, Defendant-Appellant.)" ], "opinions": [ { "text": "Mr. JUSTICE TRAPP\ndelivered the opinion of the court:\nPlaintiffs sued Wade, individually, and Wade as Sheriff, for legal fees earned and expenses incurred by Mann. The complaint in one Count alleges that \u201cdefendants\u201d employed Mann and promised to pay the values of the services performed in such employment. In such employment Mann brought action against the County Board of Supervisors seeking a declaratory judgment that Wade, as sheriff, was entitled to office space in the County Court House. In such litigation it was determined that the county board controlled the assignment of office space in the court house. (Wade v. County of Pike, 104 Ill.App.2d 426, 244 N.E. 2d 209.) In the action for declaratory judgment the then State\u2019s Attorney disqualified himself because of conflict of interest and the county board retained private counsel.\nIn this action for fees, the trial court entered judgment in favor of Wade individually, and judgment for plaintiffs against Wade as sheriff in the sum of $1996. Wade, as sheriff, by the present State\u2019s Attorney, appeals and plaintiffs cross-appeal from the judgment that plaintiffs take nothing from Wade individually.\nAt a bench trial evidence was heard upon the plaintiffs\u2019 complaint. Plaintiff Mann, and Wade testified concerning certain discussions resulting in an agreement pursuant to which Mann filed the lawsuit in question. According to Mann, Wade did not make clear to him whether payment for the lawsuit would come from Wade\u2019s personal funds or from the funds of the sheriff. Mann sent his bill to \u201cMr. James Wade, Sheriff, Pike County, Pittsfield, Illinois.\u201d Wade testified that Mann told him not to worry about the attorneys\u2019 fees from the lawsuit, because the county would pay since Wade was bringing suit as sheriff and not as an individual. A letter from Mann to Wade, which itemized attorney\u2019s fees and expenses for the lawsuit, states, \u201cI have said before that the expense is a proper expenditure of the sheriff\u2019s office.\u201d\nIn the trial court Wade argued that it was the statutory duty of the State\u2019s Attorney to represent him (Ill. Rev. Stat. 1965, ch. 14, par. 5) which is apparently projected to mean that where the State\u2019s Attorney is disqualified, Wade, as sheriff, was entitled to some legal representation at county expense.\nThe statutory procedure by which county funds become liable to pay the services of a private attorney is in Ill. Rev. Stat., ch. 14, par. 6:\n\u201cWhenever the attorney general or state\u2019s attorney is sick or absent, or unable to attend, or is interested in any cause or proceeding, civil or criminal, which it is or may be his duty to prosecute or defend, the court in which said cause or proceeding is pending may appoint some competent attorney to prosecute or defend such cause or proceeding, * *\nIt is agreed that in the declaratory judgment action no attorney was appointed by the court to represent Wade as sheriff. It is urged, however, that the trial judge acquiesced in the appearance of Mann as attorney for Wade, sheriff.\nThe trial court found that Wade was not liable individually, and further found that the trial court\u2019s acquiescence in Mann\u2019s appearance in the declaratory judgment action corrected whatever error existed in the failure to procure his appointment as provided by statute.\nThe appointment of a special state\u2019s attorney involves the exercise of judicial discretion in the determination of whether a contingency authorizing the exercise of such power has arisen. (Lavin v. Commrs. of Cook County (1910), 245 Ill. 496, 92 N.E. 291. See also People v. Sears (1971), 49 Ill.2d 14, 273 N.E.2d 380.) The jurisdiction of the trial court in such a matter may be initiated by the petition of the state\u2019s attorney or by the petition of a citizen. (People v. Howorth (1953), 415 Ill. 499, 114 N.E.2d 785.) There is dicta in People v. Northup (1914), 184 Ill. App. 638, to the effect that the jurisdiction of a court to appoint a special state\u2019s attorney may be invoked even upon the court\u2019s own motion. In any event, for a meaningful exercise of judicial discretion, the court\u2019s attention must in some way be directed to the subject matter requiring a decision. There is no showing that this was done in the case for which attorneys\u2019 fees are sought here. In the absence of appointment, the plaintiffs are not entitled to payment from county funds. Ashton v. County of Cook (1943), 384 Ill. 287, 51 N.E.2d 161.\nThe court\u2019s conclusion that Wade was not liable individually is sustained in the authorities. In Mann v. Richardson, 66 Ill. 481, it was held that when a public agent acting within the scope of his general powers contracts in good faith with parties having full knowledge or equal means of knowledge of the extent of the public agent\u2019s authority, the latter does not become individually liable unless the intent to incur personal responsibility is clearly expressed, although through ignorance of law his authority is exceeded. See also 4 McQuillin, Municipal Corporations, p. 159, par. 12.214.\nIll. Rev. Stat. 1965, ch. 53, par. 37a, provides that the county board shall fix the compensation of the sheriff and shall also fix necessary clerk hire and \u201cother expenses.\u201d In Coles County v. Messer, 195 Ill 540, 63 N.E. 391, it was said that expenses of the sheriff which are not fixed in advance by the county board cannot be recovered. In People v. Frick, 367 Ill. 446 at p. 450, 11 N.E.2d 955, it is said:\n\u201cCounty officers have no power to create a liability against the county for office expenses except within some limit already fixed by the county board, and while expense allowance for an office may be changed from time to time as circumstances may require, there is no liability unless an allowance has previously been made.\u201d\nHere, as in Frick, the burden of proof upon plaintiff was to show what action, if any, had been taken by the county board and nothing in this record meets such burden. Plaintiffs, as attorneys, are chargeable with knowledge of such law and may contract accordingly.\nThe finding of the trial court that the parties did not intend Wade to be individually liable is not contrary to the manifest weight of the evidence.\nUnder our conclusions, it is not necessary to discuss the contentions concerning the proper amount of fees allowed.\nThe judgment in favor of Wade individually is affirmed. The judgment in favor of plaintiff partnership against Wade as sheriff is reversed.\nReversed in part, affirmed in part.\nSMITH, P. J., and SIMKINS, J., concur.", "type": "majority", "author": "Mr. JUSTICE TRAPP" } ], "attorneys": [ "William E. Lowry, State\u2019s Attorney, of Pittsfield, for appellant.", "Norbert L. Hutchens and Richard E. Mann, of Hutchens and Mann, of Winchester, pro se." ], "corrections": "", "head_matter": "Norbert L. Hutchens et al., d/b/a Hutchens and Mann, Plaintiff-Appellee, v. James Wade, Defendant-Appellee\u2014(James Wade, as Sheriff of Pike County, Defendant-Appellant.)\n(No. 11804;\nFourth District \u2014\nAugust 13, 1973.\nWilliam E. Lowry, State\u2019s Attorney, of Pittsfield, for appellant.\nNorbert L. Hutchens and Richard E. Mann, of Hutchens and Mann, of Winchester, pro se." }, "file_name": "0787-01", "first_page_order": 809, "last_page_order": 813 }