{
  "id": 2723915,
  "name": "John Zoore et al., Defendants in Error, v. A. C. Terhune, Plaintiff in Error",
  "name_abbreviation": "Zoore v. Terhune",
  "decision_date": "1911-04-15",
  "docket_number": "",
  "first_page": "155",
  "last_page": "157",
  "citations": [
    {
      "type": "official",
      "cite": "161 Ill. App. 155"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "60 Ill. App. 354",
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      "cite": "39 Ill. 54",
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      "reporter": "Ill.",
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      "case_paths": [
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    {
      "cite": "5 Gilm. 332",
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    {
      "cite": "22 Ill. 272",
      "category": "reporters:state",
      "reporter": "Ill.",
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        5279987
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      "case_paths": [
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  "analysis": {
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  "last_updated": "2023-07-14T14:57:31.944651+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "John Zoore et al., Defendants in Error, v. A. C. Terhune, Plaintiff in Error."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Duncan\ndelivered the opinion of the court.\nThis 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.\nThe 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.\nThe 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 \u201cWe were sorter partners.\u201d This was stated in answer to the court\u2019s question: \u201cWere you and Mr. Cockrum partners in this work?\u201d 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.\nA demand, to be legal and binding on the defendant and to entitle plaintiff to attorney\u2019s 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\u2019s 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\u2019s 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.\nReversed and remanded.",
        "type": "majority",
        "author": "Mr. Justice Duncan"
      }
    ],
    "attorneys": [
      "Walter W. Williams, for plaintiff in error.",
      "No appearance for defendant in error."
    ],
    "corrections": "",
    "head_matter": "John Zoore et al., Defendants in Error, v. A. C. Terhune, Plaintiff in Error.\n1. Pabties\u2014when joint action does not lie. Two laborers separately employed who show no joint interest in the compensation to be paid to them respectively, are not entitled to maintain a joint action.\n2. Pasties\u2014how action should proceed upon death of co-partner. If an action be instituted by co-partners, upon the death of one co-partner the action should proceed by the remaining partner as \u201csurviving partner.\u201d\n3. Wages\u2014when attorney\u2019s fees improper in action for. If no written demand has been made on the defendant at least three days before suit is brought for a sum not exceeding the amount found due, an allowance for attorney\u2019s fees is improper. The statute must be complied with in every particular to entitle the plaintiff to recover attorney\u2019s fees.\n4. Appeals and ebbobs\u2014effect of appellee\u2019s failure to file brief. In the Fourth District the failure of the appellee to file a brief is ground for a pro forma reversal.\nAction commenced before justice of the peace. Error to the County Court of Franklin county; the Hon. A. D. Webb, Judge, presiding.\nHeard in this court at the October term, 1910.\nReversed and remanded.\nOpinion filed April 15, 1911.\nWalter W. Williams, for plaintiff in error.\nNo appearance for defendant in error."
  },
  "file_name": "0155-01",
  "first_page_order": 197,
  "last_page_order": 199
}