¶1dissenting: I disagree with the majority opinion.
¶2In no one of the cases cited in such opinion was a recovery allowed for expenses incurred in prior litigation between the same parties as those involved in the subsequent suit. No authority has been brought to our attention holding that the party successful in any legal proceeding (except perhaps in suits for malicious prosecution of a civil suit without probable cause where the defendant has been arrested or his property seized or he has received special injury not necessarily resulting in all suits prosecuted to recover for like causes of action) can in"a subsequent proceeding recover from the party who was unsuccessful in the first proceeding attorney’s fees or other expenses incurred by the party successful in such first proceeding. Apparently the precise question has' not been previously passed upon this State. In Smith v. Michigan Buggy Co., 175 Ill. 619, the court said: “Such ordinary trouble and expense, as arise from the ordinary forms of legal controversy, should be endured by the law-abiding citizen as one of the inevitable burdens, which men must sustain under civil government.”
¶3In 39 American Law Reports Annotated, page 1218, there is an extensive collection of authorities on the question and the author says: “Apart from the decisions resulting from the view entertained in some states that an action will lie for damages occasioned by the institution of a civil suit without reasonable or probable cause, it has been uniformly held that payment of the legal costs incurred in the action is the full measure of liability incurred by an unsuccessful litigant. ... It follows that the expense incurred by the successful party in a suit, over and above the taxable costs, cannot be made the basis of a subsequent action against the unsuccessful party.”
¶4In 17 Corpus Juris, page 811, it is said: “Where an action based upon some wrongful act has been prosecuted by plaintiff against defendant to a successful issue, he cannot in a subsequent action recover his costs and expenses in the former action as damages.” The majority opinion in the present case uses the argument that inasmuch as such expenses can be recovered when incurred in prior litigation between plaintiff and a third party, recovery should also be permitted when such prior litigation was between the same parties as are plaintiff and defendant in the sec- • ond suit. The Supreme Court of Washington considered this same argument in the case of Choukas v. Severyns, 3 Wash. (2d) 71, 99 P. (2d) 942, and refused to permit recovery in a case involving only the immediate parties to the original suit although such court said it had already committed itself to the doctrine that such expenses incurred in litigation with third partiés could be recovered. In Perlus v. Silver, 71 Wash. 338,128 Pac. 661, the court said: “There is no common-law principle that permits a successful litigant to recover from his losing adversary the costs and expenses of the litigation. Hence, if such a right exists, it must be statutory. The legislature of this state has given to the successful litigant the right to have certain items of expenses taxed as costs; but these must be taxed in the original action and not recovered by subsequent suit. There, being neither common-law nor statutory authority for maintaining the cause of action in the instant case for the costs and expenses of the previous litigation, the nonsuit as to this was also properly granted.” (See Leslie v. Carter, 268 Mo. 420,187 S. W. 1196.)
¶5I believe the danger inherent in allowing suits of this .character to be maintained is well indicated by the language used by our own Supreme Court in the Smith v. Michigan Buggy Co. case, supra. In that ease the plaintiff brought suit to recover damages alleged to have been sustained by him in a prior civil suit which prior suit he claimed defendant had brought against him maliciously and without probable cause. The court held that the plaintiff had no cause of action and in the course of its opinion said at pages 628 and 629: ‘ ‘ On the other hand, it must be remembered that the courts are open to every citizen; and every man has a right to come into a court of justice and claim what he claims to be his right without fear of being prosecuted for heavy damages. If such actions are allowed, it might oftentimes happen that an honest suitor would be deterred from ascertaining his legal rights through fear of being obliged to defend a subsequent suit, charging him with malicious prosecution. ’ ’ Of course such principal of law applies equally to all litigants, whether plaintiff or defendant. The court further said: “Those, who favor this species of action, also claim that, if the courts refuse to allow such actions to be maintained, litigation will be encouraged, and causeless and unfounded civil suits will be apt to be brought. On the contrary, the danger is that litigation will be promoted and encouraged by permitting such suits as the present action to be brought. This is so, because the conclusion of one suit would be but the beginning of another. A defendant, who had secured a favorable result in the suit against him, would be tempted to bring another suit for the purpose of showing, that there had been malice and want of probable cause in the prosecution of the first suit which he had won. Litigation would thus become interminable. Every unsuccessful action would be apt to be followed by another, alleging malice in the prosecution of the former action. There would thus be substantially a trial of every lawsuit twice instead of once, because in order to show that the first suit was malicious and without probable cause, it would be necessary to go. over again the material facts that had been developed by the proof in such suit.”
¶6In the instant case the attorney’s fees and other expenses sought to be recovered were incurred in the successful prosecution of a chancery proceeding by the present plaintiff against the present defendant. In Patterson v. Northern Trust Co., 286 Ill. 564, 568, the court said: “Any party claiming a judgment for his costs' against his adversary must bring himself within the operation of some statutory provision, and courts have no power to adjudge costs against any one on merely equitable grounds.” In Rasch v. Rasch, 278 Ill. 261, 275, the court said: “We have repeatedly held that solicitors’ fees cannot be taxed as costs against the unsuccessful party in a chancery proceeding in the absence of a statute making provision for the allowance of such fees as costs.” I believe it follows from such cases that in the chancery proceeding brought by the present plaintiff against the present defendant, the court would have been powerless, even on equitable grounds to have allowed the plaintiff the attorney’s fees or other expenses sought to be recovered in the present proceeding. If such expenses, including attorney’s fees, could not have been allowed in such chancery proceeding, I am at a loss to understand how they can properly be allowed in the present proceeding.
¶7In my opinion there is another ground which prevents the maintenance of the present suit. Assuming that plaintiff was entitled to be reimbursed for such expenses, the chancery court had the power in such chancery proceeding to settle all questions incident to the relief therein sought, even if it was necessary in such proceeding to pass upon purely legal rights which would otherwise be beyond the scope of the court’s authority (Stickney v. Goudy, 132 Ill. 213), and in the exercise of such power the chancery court had the right to pass upon the question of the allowance of such expenses. The doctrine of res judicata is limited not only to the issues actually involved and determined in the first suit but extends to every other matter which might have been raised and determined in such suit. (People ex rel. DeCola v. United States Fidelity & Guaranty Co., 306 Ill. App. 518.) Therefore, in my opinion the subject matter of the relief that plaintiff was entitled to from defendant because of the misconduct of defendant is res judicata, and cannot be again adjudicated.