Roby v. Chicago Title & Trust Co.

Mr. Justice Windes delivered the. opinion of the court. For plaintiffs in error it is argued in substance that there was error in allowing said solicitor’s fees, $20 for master’s report, $2.50 for approving decree and seventy-five cents for real estate board fee, and that because of the alleged erroneous allowance for solicitor’s fees and fee for master's report, the decree of sale should be wholly reversed. As is shown by the statement preceding- this opinion, no objections or exceptions were made to the master’s report pursuant to the order of reference directing him to take proofs and report the same to the court, with his opinion upon the law and the evidence. It has been repeatedly held by. the Supreme Court, as well as by this court, that a defendant can not, when a decree has been entered against him upon a master’s report, to which he has taken no exception, question the competency or sufficiency of the evidence to support the decree. Pennell v. Lamar Ins. Co., 73 Ill. 303; Brockman v. Aulger, 12 Ill. 277-9; Cheltenham I. Co, v. Whitehead, 128 Ill. 284; Hurd v. Goodrich, 59 Ill. 450-5; Dates v. Winstanley, 53 Ill. App. 623; Burke v. Donnovan, 60 Ill. App. 241-7; Lebkuechner v. Moore, 88 Ill. App. 16; Kinsella v. Cahn, 185 Ill. 208. If, however, plaintiffs in error were in a position, by reason of having excepted to the master’s report, to question the solicitor’s fee, they could not do so because, as we have seen from the statement, a decree fro confesso was entered against them for want of answer to the bill, by which they are precluded from questioning the sufficiency of the evidence to support the decree as well as the decree itself, if the latter is within the allegations of the bill. Hurd’s Rev. Stat;, Ch. 22, Sec. 18; Manchester v. McKee, 4 Gilman, 511-17; Glos v. Swigart, 156 Ill. 229; Avery v. Maude, 112 Calif. 565; Monarch B. Co. v. Wolford, 179 Ill. 255. The bill alleges, as is shown by the statement, facts sufficient' to justify a foreclosure of the trust deed, sets up the provisions of the trust deed authorizing legal or equitable proceedings for the collection of the amount of money secured thereby, and that all expenses and disbursements paid or incurred in behalf of complainants in connection with its foreclosure, including reasonable solicitor’s fees, should be paid by the grantor, and prays a decree for reasonable solicitor’s fees. We regard these allegations as sufficient to justify the provisions of the decree allowing reasonable solicitor’s fees. Plaintiffs in error being precluded from questioning the proofs, both because they took no exceptions to the master’s report, and by reason of the decree pro confesso, and the allegations of the bill being sufficient to justify the allowance of solicitor’s fees, there was no error in making the allowance. The claim made, that $20 for master’s report was erroneous, is not tenable. The statute, chapter 53, section 20 (Hurd), has the following provisions with regard to what fees should be allowed masters in chancery, to wit: “For computing the amount due on which to render a decree, and making a report thereof to the court, where no oral evidence is taken, two dollars. “ In counties of the third class masters in chancery may receive for examining questions in issue referred to them, and reporting conclusions thereon, such compensation as the court may deem just, and for services not enumerated above in this section, and which have been and may be imposed by statute or special order, they may receive such fee as the court may allow.” As we have seen from the statement, the master took oral evidence, both the defendants were in default, there was a special order of the court directing him to take proof and report his conclusions, and the court fixed his fee for the report at $20. We think it was reasonable and proper allowance under the statute. The items of $2.50 for approving decree and seventy-five cents for real estate board fee, though possibly not strictly allowable as costs, are too small to merit consideration by a court of review. But it may be said, as appears from the statement, both these items were approved by the chancellor and the master was specially directed by the decree to make the sale at the judicial salesrooms of the Chicago Beal Estate Board. This was no doubt done in the interest of plaintiffs in error, in order to secure the largest possible publicity of the sale, and we think this small fee an entirely reasonable expense for the master to incur. As to the fee for approving decree, the allowance is not unreasonable for that sendee. It is common practice in the courts of chancery in Cook county for the master to render this service, and while there does not appear to have been a special order of the court directing the master to approve the decree, the court’s subsequent approval of the master’s charge therefor, considered in connection with the practice referred to, may be said to bring it within the meaning and intendment of the statute. Defendants in error have asked statutory damages, upon the claim that the appeal has been taken for delay, but we think this is not a case for damages. The decree of the Superior Court is therefore affirmed.