Jackson v. O'Connell

46 Ill. App. 2d 49, 196 N.E.2d 714 (1964)



Any substantial defense made in good faith, although not sustained in either a trial court or a reviewing court, is sufficient to preclude the apportionment of solicitor's fees. It is error to apportion attorney's fees where a suit is strongly contested and defendants in good faith advance reasonable and substantial grounds on which they defend. The partition statute is construed in favor of equity and justice as applied to individual cases arising under it. A good and substantial defense does not mean a successful defense, nor does it mean one which is merely formal, frivolous or vexatious, and not undertaken in good faith.


Plaintiffs filed a complaint for partition and proceeded on the theory that they had an undivided two-thirds interest in the real estate and defendant had an undivided one-third interest. Plaintiffs' motion to strike a counterclaim was overruled. The cause was referred to a master, who found the interests in accordance with defendants' contentions. The trial court adopted the master's conclusions. The master also recommended the allowance of attorney's fees in the amount of $ 12,500 to the attorney for one joint tenant. Plaintiffs' objections were overruled by the master and the trial court approved. On appeal, counterclaimant's request for an apportionment of her attorney's fees were denied. That part of the order of the Circuit Court awarding attorney's fees to counterclaimant was reversed  and in all other respects the order was affirmed.


Was counterclaimant entitled to claim attorney's fees from the plaintiff?




The court held that it was not necessary to be the original plaintiff in order to have one's attorney's fees apportioned. Upon satisfying the Partition Act, Ill. Rev. Stat. ch. 106 (1963), it was possible for the attorney of a counterclaimant to have her fees apportioned. Although plaintiffs' defense to the partition action was not successful, their arguments were advanced in good faith and were not frivolous. Thus, the joint tenant's request for an apportionment had to be denied.

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