Wattson v. Jones

Mr. Justice Shepard delivered the opinion of the court. This is the case of a decree of foreclosure of a trust deed to secure the principal sum. of $700, which is subject and second to a prior trust deed given to secure $3,000. The first error complained of is that an excessive sum for solicitor’s fee was awarded by the decree. The amount awarded was $150. The trust deed provides for a reasonable solicitor’s fee, and evidence was heard upon the subject. We do not approve of the form of questions asked or answers given by witnesses who testified, but it is no more than a fair inference that the effect of the testimony is that from $100 to $150 was, in the opinion of the witnesses, a reasonable and usual fee for the services rendered. The Supreme Court has held in McMannomey v. Chicago, Danville and Vincennes R. R. Co., 167 Ill. 497, that while opinions are receivable and entitled to due weight in fixing the amount of attorneys’ fees, yet that courts are also well qualified to form an independent judgment on such questions, and that it is their duty to do so, and in that case cut down the attorneys’ fees from $85,000, the amount awarded by the court below, to $50,000. It is insisted that $150 is too large an allowance because of the amount involved; that it is nearly one-quarter of the principal indebtedness. The mortgagor contracted to pay a reasonable sum, which amounts to an agreement to pay a usual and customary charge, for the services to be rendered, and it is quite manifest that the proportion it may bear to the amount involved furnishes no just basis, by itself, for determining what is a reasonable fee. It is rather, what is reasonable considering the services rendered in a case of foreclosure. The record shows that a receiver was appointed, two reports of the receiver were filed, and presumably examined, and that a demurrer by the defendant was interposed and overruled, in addition to the usual other proceedings in a foreclosure case, such as a reference to and taking testimony before a master, etc. Taking into account what is held by the Supreme Court, as referred to above, we do not feel justified in saying that the report of the master and the order of the court approving his finding that $150 was a reasonable fee, under all the circumstances, is wrong or unjust. It is next urged that there is no proof that the solicitor’s fee had been paid by the appellee or that he had become liable to pay it. The rule requiring such proof applies to the cases of damages on the dissolution of injunctions, and the like, and has no application to a foreclosure of a mortgage containing an agreement by the mortgagor to pay a solicitor’s fee. It is next urged that the decree contains an allowance for the untaxed fees of the guardian ad litem, while the record fails to disclose that any such person was party to the suit or entitled to fees. There is no such error assigned on the record, nor is there anything in the decree, as abstracted, to sustain the argued, though not assigned, error. The only remaining assigned error is the fourth, that the decree does not provide the terms of sale, and the time, place and manner thereof, as required by law. The provisions of the decree in the respects complained of are that the premises “ be sold at public auction, for cash, to the highest and best bidder, at the judicial salesrooms of the Chicago Real Estate Board, No. 57 Dearborn street, in the city of Chicago, county of Cook, and State of Illinois.” “It is further ordered that William F. Wiemers, a master in chancery of this court, execute this decree; that he give public notice of the time, place and terms of such sale, by previously publishing the same weekly, for three successive weeks, in a secular newspaper of general circulation, published in said city, the first publication thereof to be at least twenty days prior to the day of sale.” We think the provisions of the decree are sufficient. The decree should be affirmed and it is so ordered.