If any person sues in any court of this state, in any action, wherein the plaintiff may have costs in case judgment is entered in favor of the plaintiff and the action is voluntarily dismissed by the plaintiff or is dismissed for want of prosecution or judgment is entered against the plaintiff, then judgment shall be entered in favor of defendant to recover defendant's costs against the plaintiff (except against executors or administrators prosecuting in the right of their testator or intestate), to be taxed, and the costs shall be recovered of the plaintiff, by like process as the plaintiff may have had against the defendant, in case judgment had been entered for such plaintiff.
5-109.Defendant to recover costs.
Article V. Costs · Not amended since adoption on record · Last verified July 20, 2026
In one sentenceAwards a defendant costs when the plaintiff voluntarily dismisses, the case is dismissed for want of prosecution, or judgment goes against the plaintiff, in any action where the plaintiff could have recovered costs by winning, except against executors or administrators suing on behalf of an estate.
Full Text of 735 ILCS 5/5-109
Plain-English Summary
This section flips the rule in Section 5-108 around for a losing or retreating plaintiff. It applies to actions where the plaintiff could have recovered costs by winning; in that same kind of action, if the plaintiff voluntarily dismisses, the case is dismissed for want of prosecution, or judgment is entered against the plaintiff, the defendant instead gets judgment for the defendant's costs.
One category of plaintiff is carved out. The rule doesn't reach executors or administrators prosecuting an action in the right of their testator or intestate — the estate they represent doesn't face this cost exposure the way an ordinary plaintiff would.
Collection follows a mirror-image rule: the defendant recovers costs from the plaintiff using the same process the plaintiff would have used against the defendant, had the plaintiff won.
Frequently Asked Questions
When does a defendant recover costs under this section?
When the plaintiff voluntarily dismisses the action, the action is dismissed for want of prosecution, or judgment is entered against the plaintiff, in a case where the plaintiff could have recovered costs by winning.
Is there an exception to the defendant's right to recover costs here?
Yes. The rule doesn't apply against executors or administrators prosecuting an action in the right of their testator or intestate.
How does the defendant collect costs awarded under this section?
By the same process the plaintiff would have used against the defendant had the plaintiff won.
Does this section apply if the plaintiff just drops the case?
Yes, a voluntary dismissal by the plaintiff is one of the events that triggers the defendant's right to costs.
What if the case is dismissed because the plaintiff failed to pursue it?
Dismissal for want of prosecution is also one of the events that triggers the defendant's right to costs.
Amendment History
(Source: P.A. 82-280.)
Source & verification. Section text and amendment history are
reproduced verbatim from the Illinois Compiled Statutes, published by the
Illinois Compiled Statutes, Illinois General Assembly / Legislative Reference Bureau. Last verified July 20, 2026.
· Official source
Also known as: defendant recovers costs illinois voluntary dismissalwant of prosecution costs illinoiscosts against plaintiff illinois lawsuitexecutor exception costs illinois