{
  "id": 3417685,
  "name": "FOSS, SCHUMAN & DRAKE, Plaintiffs-Appellants, v. EMIL VACIN, Mayor of Berwyn, Defendant-Appellee",
  "name_abbreviation": "Foss, Schuman & Drake v. Vacin",
  "decision_date": "1978-02-21",
  "docket_number": "Nos. 77-209, 77-474 cons.",
  "first_page": "660",
  "last_page": "662",
  "citations": [
    {
      "type": "official",
      "cite": "57 Ill. App. 3d 660"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
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  "cites_to": [
    {
      "cite": "39 N.E.2d 25",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1960,
      "opinion_index": 0
    },
    {
      "cite": "378 Ill. 578",
      "category": "reporters:state",
      "reporter": "Ill.",
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        2548331
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      "year": 1960,
      "opinion_index": 0,
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    {
      "cite": "30 N.E.2d 46",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "374 Ill. 557",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2533059
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill/374/0557-01"
      ]
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  "analysis": {
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    "word_count": 750
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  "last_updated": "2023-07-14T21:27:43.340261+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "FOSS, SCHUMAN & DRAKE, Plaintiffs-Appellants, v. EMIL VACIN, Mayor of Berwyn, Defendant-Appellee."
    ],
    "opinions": [
      {
        "text": "Mr. PRESIDING JUSTICE STAMOS\ndelivered the opinion of the court:\nThis appeal arises from an order entered by the circuit court of Cook County, dismissing with prejudice plaintiffs\u2019 complaint for a writ of mandamus directed at defendant, Emil Vacin, Mayor of Berwyn, Illinois. The order stated that there was no cause to delay its enforcement or appeal.\nPlaintiffs, the law firm of Foss, Schuman & Drake, were retained by the city of Berwyn, Illinois on January 5,1976 to represent Berwyn in various legal matters. Plaintiffs were to perform litigation services, negotiate on behalf of Berwyn with respect to a garbage workers strike, and represent Berwyn in the city\u2019s efforts to transfer garbage removal from municipal to private services. Plaintiffs, allegedly, diligently represented Berwyn in the performance of the aforementioned duties.\nOn May 17, 1976, plaintiffs submitted a statement in the amount of *23,499.15 to the city for legal services rendered during January and February of 1976. The Berwyn City Council, on May 24,1976, apparently declared plaintiffs\u2019 statement for legal services rendered a legal obligation upon the city and directed defendant Emil Vacin, Mayor of Berwyn, to issue a check payable to plaintiff in the amount indicated on the statement. The mayor vetoed the action of the city council but the council overrode the veto, allegedly causing the directive of the city council to remain in full force and effect.\nThe refusal of defendant to compensate plaintiffs for legal services rendered prompted plaintiffs\u2019 initiation, in the circuit court of Cook County of an action for a writ of mandamus, directing the defendant Mayor of Berwyn to compensate plaintiffs. Subsequent to the commencement of the action, a lengthy procedural history ensued. Defendant filed a motion to strike plaintiffs\u2019 complaint for a writ of mandamus and plaintiffs filed a response thereto. Plaintiffs then filed a motion for summary judgment. The circuit court denied defendant\u2019s motion to strike the complaint but granted defendant\u2019s motion to strike plaintiffs\u2019 motion for summary judgment.\nDefendant subsequently filed an answer and affirmative defenses to plaintiffs\u2019 complaint and thereafter both plaintiffs and defendant moved for summary judgment. The circuit court litigation finally terminated on November 4, 1976, when the court entered an order dismissing plaintiffs\u2019 action for a writ of mandamus due to plaintiffs\u2019 failure to establish a clear and indisputable right to such writ. It is from this order that plaintiffs appeal.\nPlaintiffs sought to compel its compensation from defendant through the use of the writ of mandamus. Mandamus is an \u201cextraordinary remedy\u201d thus we must first consider its propriety in the case at bar.\nThe writ of mandamus is a summary writ issued from a court of competent jurisdiction commanding the officer or officers to whom it is addressed to perform some public duty which the relator is entitled of right to have performed and which the party owing the duty has failed to perform. (People ex rel. Heydenreich v. Lyons (1940), 374 Ill. 557, 30 N.E.2d 46.) Mandamus lies to compel the performance of the public duty only when the right to the performance is clear and indisputable. Mandamus will not lie for the collection of debts, but is proper to enforce payment of a claim ascertained to be due. This ascertainment is usually by a judgment. People ex rel. Rude v. County of LaSalle (1941), 378 Ill. 578, 39 N.E.2d 25. See generally Allen, Mandamus, Quo Warranto, Prohibition, and Ne Exeat, 1960 U. Ill. L.F. 102 (1960).\nBased upon these principles of law it is evident that plaintiffs\u2019 action for a writ of mandamus was premature. Plaintiffs\u2019 alleged entitlement to *23,499.15 in legal fees was never reduced to a legal judgment, in that amount, against defendant. Consequently, we cannot hold that plaintiffs had a clear and indisputable right to the fees. The action for mandamus would be appropriate only if plaintiffs obtained a judgment against defendant and defendant persisted in his refusal to compensate plaintiffs. At that point mandamus would provide the proper remedy for plaintiffs by compelling defendant to perform a public duty.\nPlaintiffs\u2019 action for a writ of mandamus was premature and properly dismissed with prejudice by the circuit court. Therefore, the judgment of the circuit court of Cook County is affirmed.\nAffirmed.\nDOWNING and PERLIN, JJ., concur.",
        "type": "majority",
        "author": "Mr. PRESIDING JUSTICE STAMOS"
      }
    ],
    "attorneys": [
      "George C. Pontikes, Richard Kuhlman, and Sheldon Gardner, all of Chicago, for appellants.",
      "Gierach, Stambulis & Schussler, Ltd., of Oak Lawn, for appellee."
    ],
    "corrections": "",
    "head_matter": "FOSS, SCHUMAN & DRAKE, Plaintiffs-Appellants, v. EMIL VACIN, Mayor of Berwyn, Defendant-Appellee.\nFirst District (2nd Division)\nNos. 77-209, 77-474 cons.\nOpinion filed February 21, 1978.\nGeorge C. Pontikes, Richard Kuhlman, and Sheldon Gardner, all of Chicago, for appellants.\nGierach, Stambulis & Schussler, Ltd., of Oak Lawn, for appellee."
  },
  "file_name": "0660-01",
  "first_page_order": 682,
  "last_page_order": 684
}