{
  "id": 2675889,
  "name": "Phillip Kollehner et al., Plaintiffs in Error, v. R. C. Brown, Defendant in Error",
  "name_abbreviation": "Kollehner v. Brown",
  "decision_date": "1908-09-12",
  "docket_number": "",
  "first_page": "425",
  "last_page": "428",
  "citations": [
    {
      "type": "official",
      "cite": "143 Ill. App. 425"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [],
  "analysis": {
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    "ocr_confidence": 0.509,
    "pagerank": {
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    "simhash": "1:934fc1d9e4ffd2dd",
    "word_count": 1225
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  "last_updated": "2023-07-14T18:28:23.290304+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Phillip Kollehner et al., Plaintiffs in Error, v. R. C. Brown, Defendant in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Creighton\ndelivered the opinion of the court.\nThis was a bill in chancery to foreclose a real estate mortgage, in the Circuit Court of Union county, by plaintiffs in error against defendant in error. The bill was the usual bill in such cases with the usual prayer for foreclosure and for general relief. The prayer contained a clause asking for costs and for \u201ca reasonable solicitor\u2019s fee.\u201d\nTo this bill defendant in error. filed a demurrer, specifying a number of distinct causes, among them the following: \u201cAnd for further cause of demurrer this defendant shows to the court, as to the prayer a decree for a reasonable solicitor\u2019s fee, that the bill shows that there is no provision in said mortgage or note for such fee.\u201d\nThe court sustained the demurrer as evidenced by an order in language as follows: \u201cAnd the court being fully advised in the premises, doth sustain the said demurrer.\u201d Plaintiffs in error did not ask leave to amend, but announced in open court that they elected to' stand by their bill. Whereupon the court decreed that the bill be dismissed and that the plaintiffs in error pay the costs. This disposition of the case is assigned as error.\nWhile the court does not state upon what ground the demurrer was sustained, nor which one or ones of the various specified causes of demurrer was sustained, it is, however, clearly apparent from an inspection of the bill, that there could have been no other ground or cause except the one above quoted; and we understand counsel for defendant in error to concede this to be the case. He says: \u201cThe only point in dispute in this case was as to solicitor\u2019s fee.\u201d\nCounsel for plaintiffs in error contend that the question raised by the clause of the demurrer referred to, could be determined only at the final hearing of the case. There is but little authority to be found bearing directly upon the question. As tending to support counsel\u2019s contention, such expressions as the following may be found in some texts and in a number of opinions: \u201cA demurrer will not be sustained because a prayer is too ample or exacting in the relief sought, but the proper relief can be accorded and limited by the decree.\u201d \u201cA demurrer to a prayer for incidental relief is not admissible, for the defendant may avail himself of the objection at the hearing, with every possible advantage that he could obtain by a demurrer.\u201d \u201cThe fact that a complainant does not ask for the proper relief, or asks for inconsistent relief, is not ground of demurrer. \u2019 \u2019\nThe most direct and satisfactory, authorities we have found are Whitbeck v. Edgar, 2 Barbour\u2019s Chancery Reports, 106, and The Western Insurance Company v. The Eagle Fire Insurance Company, 1 Paige\u2019s Chancery Reports, 284. In Whitbeck\u2019s case the court held that \u201ca demurrer to the whole bill does not lie because the prayer for relief is too broad. The proper course in such case, is to demur to the part of the relief specifically prayed for, to which the complainant is not entitled upon the case made by his bill.\u201d And in the Western Insurance Company\u2019s case the court says: \u201cWhere the complainant makes a specific claim to particular relief, which he cannot under any circumstances he entitled to at the hearing, perhaps the defendant may object thereto by way of demurrer, although there is also a prayer for general or other proper relief in the bill.\u201d And the court in further discussing the same question says: \u201cIf such a demurrer be allowable in any case, it ought not to be encouraged, as the defendant may avail himself of the objection at the hearing, with every possible advantage which he could obtain .by a demurrer. And the court ought not thus to be called on preliminarily to examine the case in all its bearings, for the purpose of determining what relief the complainant may be entitled to at the hearing, when all the facts and circumstances are fully developed.\u201d\nWhile such demurrers are not looked upon with favor, we think them permissible in clearly proper cases, and the case at bar appears to us to be of that class. We are therefore of opinion that the Circuit Court did not err in sustaining the clause of the demurrer above quoted but it does not necessarily follow, that the order dismissing the bill was not error.\nThe clause of the demurrer sustained was neither a general demurrer nor a special demurrer, in the sense these terms are ordinarily used. It was in no sense a demurrer to the whole bill, nor a demurrer in any material respect affecting the bill as a whole. It was of that class denominated \u201cdemurrer to part of a bill.\u201d Such demurrers recognize the sufficiency of the bill as a whole, both in substance and in form. They are availed of for the purpose of testing some particular feature of a bill that cannot be properly reached by either a general demurrer or the usual special demurrer. \u201cWhen the defendant demurs to part of a bill he must plead to or answer the rest.\u201d Beach on Modern Equity Practice, Vol. 1, sec. 241.\nThe effect of sustaining the clause of defendant\u2019s demurrer here under consideration was to eliminate from the prayer of the hill the. part asking for the allowance of a solicitor\u2019s fee. It left intact a perfect bill stating a good and meritorions cause of action, with an ample and proper prayer for substantial relief. The snstaining of this demurrer did not impose upon the complainants any duty to amend, nor did it relieve the defendant of the duty to answer the whole bill, except that part covered by his limited demurrer. While it is true complainants might have asked and obtained leave to amend upon the sustaining of the demurrer, had they so desired, still they could not be rightfully required to do so. They had a right to stand by their bill as it remained after the obnoxious part.had been eliminated by the demurrer, and to insist upon having due and proper relief thereunder.\nWe have discussed the case so far upon the assumption that the. Circuit Court sustained only the limited demurrer to the part of the prayer of the bill asking for the.allowance of a solicitor\u2019s fee. .If this be true, the court erred only in dismissing the bill, and decreeing that complainants pay the costs. If however the court sustained other than that demurrer, as the state of the record indicates to be the fact, then the court erred in that also.\nThe decree of the Circuit Court is reversed and the cause remanded.\nReversed and remanded.",
        "type": "majority",
        "author": "Mr. Justice Creighton"
      }
    ],
    "attorneys": [
      "W. D. Lyerle, for plaintiffs in error.",
      "P. E. Hileman, for defendant in error."
    ],
    "corrections": "",
    "head_matter": "Phillip Kollehner et al., Plaintiffs in Error, v. R. C. Brown, Defendant in Error.\nPractice\u2014when error to dismiss hill of complaint upon sustaining demurrer. It is error to dismiss a bill of complaint upon sustaining a demurrer which successfully challenges only an incidental portion of the relief prayed.\nBill in chancery. Error to the Circuit Court of Union county; the Hon. William N. Butler, Judge, presiding.\nHeard in this court at the February term, 1908.\nReversed and remanded.\nOpinion filed September 12, 1908.\nW. D. Lyerle, for plaintiffs in error.\nP. E. Hileman, for defendant in error."
  },
  "file_name": "0425-01",
  "first_page_order": 443,
  "last_page_order": 446
}