Goodwillie v. Millimann

Citations

• 56 Ill. 523

Syllabus

<p>1. Contempt—refusing to pay a money decree—mode of enforcing payment of such decree. Even if a court of chancery has the power to commit a party to jail for a failure to comply with a decree of the court, and there is no other ground for regarding him as in contempt, such remedy should not be resorted to unless there are no other reasonable means for its enforcement. In analogy to the constitution the remedy of enforcing decrees by imprisonment should be limited to cases of necessity only.</p> <p>2. There seems to be no more reason for deblaring a party in contempt of court for failing to pay a money decree than for refusing to pay a judgment at law.</p> <p>3. And quiere, whether, in any case, the statute authorizes a court of equity to imprison for a failure to pay a money decree.</p> <p>4. In a proceeding for the partition of lands, a decree of partition being entered on a default by the defendants, together with their admissions, the court, under the act of 1869, authorizing the chancellor, in cases of that character, to decree the payment of a solicitor’s fee, allowed and taxed a counsel fee of $3,500, and decreed that the same be paid forthwith: Held, upon failure of one of the parties to pay the portion of such fee decreed against him, the action of the court, in adjudging him guilty of contempt for such failure, and ordering his committal to the county jail, was without authority of law.</p> <p>5. The statute having declared that such fees should be taxed as costs, and no mode being provided for their collection, the statute having failed in terms to provide any, it must be presumed it was intended they should be governed by the cost act in the mode of their collection, as also in re-taxing, replevying and other incidents. And that provides their collection may be compelled by execution.</p> <p>6. Costs—re-taxing the same. The amount of the solicitor’s fee having been ascertained by the court, from evidence heard in open court, but, in the absence of the d