{
  "id": 5269327,
  "name": "Caroline Eimer v. George J. Eimer et al.",
  "name_abbreviation": "Eimer v. Eimer",
  "decision_date": "1868-06",
  "docket_number": "",
  "first_page": "373",
  "last_page": "376",
  "citations": [
    {
      "type": "official",
      "cite": "47 Ill. 373"
    }
  ],
  "court": {
    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "46 Ill. 412",
      "category": "reporters:state",
      "reporter": "Ill.",
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    {
      "cite": "22 Ill. 546",
      "category": "reporters:state",
      "reporter": "Ill.",
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        5280522
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      "case_paths": [
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    {
      "cite": "11 Ill. 26",
      "category": "reporters:state",
      "reporter": "Ill.",
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      "case_paths": [
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  "last_updated": "2023-07-14T21:11:57.354715+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Caroline Eimer v. George J. Eimer et al."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Walker\ndelivered the opinion of the Court:\nThis was a petition for partition and the assignment of dower, in certain real estate, belonging to the heirs of Simon Eimer, deceased, and which they had inherited from him, and in which his widow had dower. On the hearing, the court ascertained and settled the rights of the several parties, and appointed commissioners to make partition, and to assign the widow\u2019s dower. They afterwards reported that neither partition could be made nor dower assigned in the premises, and the court thereupon decreed the sale of the premises, and empanelled a jury to ascertain the yearly value of the widow\u2019s dower in the premises, which was found, and decreed to be paid, and also to be and remain a lien on the land as a security for its payment.\nAt a subsequent term of the court, the master reported a sale of the premises, which was approved by the court. And, thereupon, the solicitors of the petitioners entered a motion for an order on the master in chancery to pay them their fees for professional services in the case. On the hearing, the court below ascertained the amount and ordered the master, from the proceeds of the sale, to pay them the sum of $500.00, as a fee in the case, out of the money arising from the sale, and if not paid within thirty days, that execution issue as at common law. The assignment of ei'ror questions the correctness of the decree in favor of the attorneys in the case, but raises no question as to any portion of the previous proceedings.\nUnder the practice of our courts, statutory costs alone are taxable, and attorneys\u2019 or solicitor\u2019s fees not being of that character, this court has repeatedly held that it was error for the chancellor to alloxv such fees, or to decree their payment. The first case to which we have been referred is Adams v. Payson, 11 Ill. 26. In that case, the master to whom the case wras referred, to ascertain and report the amount due complainant from defendant on a mortgage, included a solicitor\u2019s fee of $30.00, for which, as well as the mortgage debt, a decree was rendered. On error this decree was reversed, so far as it related to the solicitor\u2019s fee. The court, in delivering the opinion, says: \u201c That part of the decree must, undoubtedly, be reversed. Ho claim for that fee is set up in the bill, and the defendant had no opportunity of defending the claim. The court could not give the complainant moi-e than he asked, and showed by his bill that he was entitled to.\u201d\nThe next case that arose was Constant v. Matteson, 22 Ill. 546. It was there said, \u201c The court below erred in allowing Matteson a solicitor\u2019s fee, to be taxed on the fund as costs in the case. The statute regulating fees of officers, provides for no such fee as that of an attorney or solicitor; and the court must, in taxing and allowing costs, look to the statute as its warrant of authority. While a court of equity has a discretion in awarding costs in chancery causes, it must confine that discretion to the fees allowed by the statute.\u201d And the rule announced in these cases has been followed in Strawn v. Strawn, 46 Ill. 412. These cases are to the point, and must control this. And it was error in the court below to render a decree for the solicitors\u2019 fees, and to that extent the decree is reversed, and must stand affirmed as to the residue.\nDecree modified.",
        "type": "majority",
        "author": "Mr. Justice Walker"
      }
    ],
    "attorneys": [
      "Mr. Joseph Schlernitzauer, for the plaintiff in error.",
      "Mr. W. H. Underwood, for the defendants in error."
    ],
    "corrections": "",
    "head_matter": "Caroline Eimer v. George J. Eimer et al.\n1. Attorney\u2019s fees\u2014not taxable as costs. In a suit for partition and the assignment of dower, on the motion of solicitors for the complainant, on the coming in of the master\u2019s report, for an order on the master to pay them out of the proceeds of the sale, their fees in the case, and the court so ordered, it was held, that under the practice of our courts, statutory costs alone are taxable, and that, as solicitor\u2019s fees are not of this character, it is error for the chancellor to allow them, or decree their payment.\nWrit of Error to the Circuit Court of St. Clair county; the Hon. Joseph Gillespie, Judge, presiding.\nThe facts are fully stated in the opinion.\nMr. Joseph Schlernitzauer, for the plaintiff in error.\nMr. W. H. Underwood, for the defendants in error.\nSince the decision of the court in this case, the legislature passed the following act, entitled \u201cAn act to amend chapter 79 of the Revised Statutes of 1845\u201d: Sec. 1. Be it enacted by the people of the State of Illinois, represented in the general assembly, that, in proceedings in any of the courts of this State, for the partition of real estate, or for the assignment of dower, or for either, it shall be lawful for the court to order that a reasonable fee be allowed the solicitor or solicitors prosecuting, to be determined by the court, which shall be taxed as costs, and divided pro rata between the parties to the proceeding, according to their respective interests. Sec. 2. This act shall take effect and be in force from and after its passage. In force April 16, 1869."
  },
  "file_name": "0373-01",
  "first_page_order": 381,
  "last_page_order": 384
}