Wirzbicky v. Dranicki

Mr. Justice Scott delivered the opinion of the court: Appellant contended before the master that there had been an entire failure of consideration as to the promissory note for $500 given by him to Dranicki. The master’s finding upon the question of fact so raised was adverse to appellant and has been approved by the chancellor. We have patiently examined the testimony which bears' upon this question. It is in a state of irreconcilable conflict. That is explained, in part, perhaps, by the fact that several of the witnesses were unable to speak the English language and testified through an interpreter. Appellant has not here made it appear that the master’s finding on this question is against the preponderance of the evidence, and as the burden of proof was upon the appellant in the circuit court, his exception to the master’s finding on this phase of the case was properly overruled. While there is no evidence in the record that shows that any execution was served upon appellant or that he had-any notice of the sale under the execution, that sale was not made until more than eighteen ■ months after the judgment was entered, and the proof satisfies us that appellant acquired knowledge of the existence of the judgment soon after it was entered. There is no evidence which indicates that an inadequate price was obtained for the property at the sheriff’s sale under the judgment. There is no evidence that Hopkins, the present holder of the title,, which resulted from that sale, practiced any fraud upon appellant or was a party to any conspiracy or unlawful combination to do him wrong. On the contrary, so far as is shown by the record, Hopkins purchased the property from Churan for an adequate consideration, in the ordinary course of business. There is no contention that Churan, who owned the judgment when the redemption was made, did not have a right to redeem, provided the judgment was valid. The .proof fails to show any equity in favor of appellant. The propriety of the action of the chancellor in granting by the decree affirmative legal' relief to the cross-complainant where no equitable relief was awarded to any party to the suit has not been questioned by the brief and argument of appellant and will therefore not be considered by us. The master properly itemized his claim for the taking of testimony, the aggregate thereof being $220. The remainder of his claim for compensation is thus stated: “To hearing arguments and examining questions in issue and reporting conclusions thereon, $200.” In Fitchburg Steam Engine Co. v. Potter, 211 Ill. 138, we said: “The claim of the master should therefore show the time he was neces^ sarily employed in the examination of questions of law and fact and in preparing his report of such findings and conclusions.” This claim does not do this. No excuse is suggested for the failure on the part of the master to comply with the requirements of the law as they are indicated in the opinion in that case. That opinion was published more than three years ago. Presumably the master is familiar with it. The law as therein set forth should be enforced. In Gottschalk v. Noyes, 225 Ill. 94, will be found a. statement of a master’s claim which was properly itemized. The statement should be so itemized in every case governed by the statute regulating the compensation of masters in counties of the third class. Where, as in this case, a charge is made by a master in a lump sum, and there is no statement made by the master from which we can ascertain the amount of time he claims was consumed in the performance of each of the duties covered by that charge, we will not in this court enter upon an independent examination of his report for the purpose of attempting to state correctly the items covered by the charge, the time given by the master to each service and the amount that should be allowed on account of each, in order that he may be decreed the sum that could properly have been allowed him had he complied with the law in reference to stating his claim. In such instance nothing will be allowed by us on account of services covered by the gross charge. The master’s report, in its length and the manner of its preparation, is properly subject to the same criticisms as was the master’s report in Manowski v. Stephan, 233 Ill. 409. Assurances, such as are found in the briefs for appel-lees, that the chancellor regarded the charge as very reasonable, are without significance. It is to be presumed that the chancellor in every instance regards the amount allowed as reasonable, otherwise he would not decree its payment. The litigants are entitled to our judgment as to the reasonableness of the charge, and the chancellor’s conclusion is entitled to no more weight than it would be upon any other proposition of like character. It is said the master’s charge was not objected to in the circuit court. The decree does not merely direct the taxing of the fees claimed by the master as shown by his report, but expressly directs the taxation of the sum of $425, which is five dollars more than the amount of the claim. It is evident that the allowance was not made pro forma but that the matter actually received the consideration of the chancellor, and as it is apparent from the record that appellant objected to each provision of the decree which was adverse to his interests, we think the question open to review. The decree of the circuit court will be modified by striking therefrom the provision taxing the master’s fee, and by inserting in lieu thereof the language following, to-wit: “The fees of the master in chancery for talcing and reporting testimony at 15 cents per hundred words, aggregating $220, will be taxed as costs. No other fees will be allowed him herein.” In all other.respects the decree.of the circuit court will be affirmed. Decree modified and affirmed.