delivered the opinion of the court.
Dеfendant appeals from an order of the superior court of Cook county assessing as costs against defendant сertain expenses arising out of a trial and appeal of a suit for an accounting and dissolution of a partnershiр. We affirmed the decree of the superior court which ordered the accounting, in Adams v. Silfen,
On April 18, 1950, plaintiff filed a sworn petition in the court below in which he set forth that the allegations and denials made by the defendant in the pleadings in the accounting suit were made without reasonable cause and not in good faith, and were “found to be untrue before every Judge, Court, Master-in-Chancery and Special Commissioner, that these proceеdings had come before. ’ ’ He sets forth that the expenses above referred to were incurred as a result of the untrue рleadings. No answer was filed to this petition. The accounting suit was heard by Judge Padder", who entered the decree from which the first appeal was taken. After the cause went back to the superior court no evidence was taken on the question of these expenses, but the order granted all the relief prayed in the petition, except that the attorney’s fеes were reduced from $10,830 asked, to $2,500.
Plaintiff urges that the order from which the appeal is prosecuted is a judgment for costs and therefore not appealable. Smith v. Farmers’ State Bank of Alto Pass,
At common law costs were not recoverable. Therefore costs can now be imposed and recovered only where аuthorized by statute. Statutes which authorize the taxation of costs are penal in their nature, and unless authority to tax them is clеarly granted by statute, their allowance cannot be sustained. Wintersteen v. National Cooperage & Woodenware Co.,
“Allegations and denials, made without reasonable cause and not in good faith, and found to be untrue, shall subject the party pleading the same to the payment of such reasonable expenses, to be summarily taxed by the court at the trial, as may have been actually incurred by the other party, by reason of such untrue pleading.”
It is to be noted thаt this section provides that reasonable expenses should be summarily taxed by the court at the trial. The reasonableness, or otherwise, of expenses is a matter of proof, particularly where the question of attorney’s fees is involved. Thе party sought to be charged therewith should be afforded ample opportunity for cross-examination as to the reasonableness of the amounts claimed and to present evidence in rebuttal. No such opportunity was afforded the dеfendant here. It is further to be observed that the statute provides that the expenses should be summarily taxed. The use of the word “summarily” should not be confused with the term “arbitrarily.” “Summarily” means that it should be done without delay and without undue formality, but it does not mean that a triаl court may enter judgment without affording the defendant an opportunity to be heard. Furthermore, the statute provides that such сosts should be taxed by the court at the trial. The purpose of this, obviously, is that, where it appears to the judge who has heаrd the cause on its merits that allegations or denials in pleadings were made without reasonable cause and not in good faith, he may without delay act upon his findings; provided, however, that an opportunity to be heard be afforded the party sоught to be charged.
Even though a disputed issue of fact raised by the pleadings is decided adversely to the contention of оne of the parties, it does not necessarily follow that such contention was motivated by bad faith. When this case was before this court on the original appeal we commented upon the fact that the evidence presented cоnflicting issues of fact both as to the existence of the partnership and the ownership of the patents. Although these issues were resolved against the defendant, they presented no question of bad faith. Long after the trial the question was raised by sworn рetition, consisting in large part of legal conclusions, to which no answer was filed, and which was passed upon ex partе by a judge who did not sit at the original trial. This is not the type of procedure that the statute contemplates, and the fact thаt no answer was filed to the sworn petition does not bring about a validation.
We are of the opinion that the trial court еrred in taxing as costs all items in the petition other than those amounts found due as master’s fees. The order is reversed and the cause remanded for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Niemeyer, P. J., and Feinberg, J., concur.