Bortree v. Macon

Mr. Presiding Justice Baker delivered the opinion of the court. The decree that the defendant Hurford be barred and' foreclosed from all equity of redemption, etc., in case of a sale of the mortgaged premises under the decree in favor of complainant was erroneous. The. decree should have provided for a sale subject to the encumbrance created by the prior trust deed in which Hurford was trustee. Hibernian Banking Ass’n v. Law, 88 Ill. App., 18. The order that a solicitor’s fee be taxed against the defendant Bortree upon the overruling of his demurrer to the bill Avas unauthorized and erroneous. Section 10, Chapter 33 R. S., provides that “If in any action judgment upon any demurrer, by either party to the action, shall be given against the plaintiff or demandant, the defendant shall recover costs against the plaintiff or demand-ant. If such judgment be given for the plaintiff or demand-ant, he shall recover costs against the defendant, and the person so recovering costs shall have execution for the same.” Section 18 of the same chapter provides that in all cases in chancery except when the complainant dismisses his bill or the same is dimissed for want of prosecution, if not otherwise directed by law, “it shall be in the discretion of the court to award costs or not.” But these statutes do not give to the court power or authority to allow and tax an attorney’s fee as costs except when the statute provides that it may be done. In Constant v. Matteson, 22 Ill., 546, which was a bill to foreclose a chattel mortgage, Mr. Justice Walker said (p. 560) : “The court below erred in allowing Matteson a solicitor’s fee to be taxed on the fund as costs in the case. The statute regulating fees of officers provides for no such fee as that of an attorney or solicitor; and the court must in taxing and allowing costs look to the statute as its warrant of authority. While the Court of Equity has a discretion in awarding costs in Chancery causes, it must confine that discretion to the fees allowed by the statute.” It was held in Conwell v. McCowan, 53 Ill., 363, error to allow a solicitor’s fee in a proceeding to foreclose a mortgage on real estate, on the ground that it was not a statutory fee or charge. In Campbell v. Campbell, 63 Ill., 502, it was held error to allow a solicitor’s fee in a partition suit when the decree was entered prior to the statute of 1869, which provides for solicitors’ fees in such cases. In Cooper v. McNeil, 9 Ill., App., 97, which was a bill for an account of partnership transactions it was said (p. 99): “It was error for the court to give an attorney’s fee. Ho statute authorizes such a fee. The discretion of a court of equity in awarding costs must be confined to the fees allowed by statute.” The court properly held that the note in question bore interest from date, not from maturity. A note bearing “interest at the rate of six per cent per annum” bears interest from date. Mobley v. Darega, 16 S. C. 73, 42 Amer. Rep., 632. The decree of the Circuit Court will be reversed and the cause remanded for further proceedings in accordance with the views herein expressed. Reversed and remanded with directions.