Brand v. Kleinecke

Me. Peesiding Justice Windes delivered the opinion of the court. There is no certificate of evidence, and nothing in the record outside the bill and amendment, to show on what the chancellor based his action in dismissing the bill, or in refusing to set aside such, order of dismissal. Certain notices and affidavits, no' part of the bill or any pleadings, are copied into the transcript of the record by the clerk, but there being nothing in the record to show that they were ever called to the attention of, or considered by the court, they constitute no part of the record and must be disregarded. Ames v. Stockhoff, 73 Ill. App. 427, and cases cited. The motion to dismiss the bill upon the tender of $61.88 and its payment into court, amounts, in the first place, to a demurrer to the bill, admitting all facts well pleaded in the bill, and, in the second place, to an admission by defendants in error that there' was due to the holder of the notes and deed that amount. Vieley v. Thompson, 44 Ill. 9; Hickey v. Stone, 60 Ill. 461; Emerson v. R. R. Co., 75 Ill. 176; Sweetland v. Tuthill, 54 Ill. 215; Monroe v. Chaldeck, 78 Ill. 430; Fuller v. Brown, 167 Ill. 294. The allegations of the bill show that complainants have rights which are the subject of equitable cognizance, and they are, by the motion to dismiss, admitted to be true, and therefore complainants are entitled to a decree of foreclosure. According to the bill $61.26 for interest was more than thirty days overdue when it was filed, on account of which the legal holder of the note, as he had a right to do under the terms of the principal note and trust deed, had elected to, and had declared the principal note due and payable. These facts being admitted, it also followed, under the terras of the trust deed, that complainants were entitled, on filing the bill, to ten per cent on the amount due for solicitors’ fees. As stated, the tender of $61.88 by defendants in error was a further admission that this amount was due, and even if this tender could have the effect of obviating the action of the legal holder of the principal note in declaring it due also, still the complainants would be entitled to recover the expenses incurred in protecting their rights in the condemnation proceedings, and at least a reasonable solicitors’ fee in this proceeding. It does not appear that any of these latter items were tendered or offered to be paid by defendants in error. In the Fuller case, supra, in which all amounts claimed to be due, including costs, except the reasonable solicitors’ fee secured by the trust deed, were tendered and deposited with the clerk of the court, it was held that “ if the defendants desired to make payment of the amount due, so as to avoid further cost and expense, they should have offered to pay a reasonable solicitors’ fee for the services already performed,” and a decree of foreclosure was affirmed. This, we think, is decisive of the case at bar on this point. Moreover, there should be evidence in the record, the bill being sufficient on its face, to support the order or decree of the court dismissing the bill, and in this regard it is incumbent on the party seeking to sustain the action of the court to preserve the evidence in the record. As we have seen, no evidence was preserved to sustain the decree, and it must be reversed. Baird v. Powers, 131 Ill. 67; Ryan v. Sanford, 133 Ill. 298; Jackson v. Sackett, 146 Ill. 655, and cases cited in each. These considerations make it unnecessary to consider the other matters argued by counsel. The decree is reversed and the cause remanded.