Reinhold v. Hansson

Mr. Presiding Justice Baume delivered the opinion of the court. Qn July 7, 1909, Albert Reinhold filed his bill in the Superior Court against Olof Hansson and others to foreclose a trust deed. All of the defendants, save the trustee, answered the bill, and upon replication to said answer by the complainant,—the trustee being defaulted for want of answer, and the bill taken pro eonfesso as to him,—the cause was, on October 21, 1909, referred to the master to take and report the proofs, together with his findings thereon. The record discloses that on November 5, 1909, before any proofs were taken under said order of reference, a decree was entered in the cause, as follows: “Upon motion of solicitor for defendants for leave to pay the principal, interest, court costs, attorneys’ fees, and Master’s fees into court, the same having been ascertained upon evidence heard in open court .by the court to be seventeen hundred twenty-three and 34-100 dollars, being as follows: Principal and interest $1,643.69, court cost $19.65, attorneys’ fees $50, master’s fee $10, and which amount has been paid by the defendants to the clerk of this court: “It is hereby ordered that the order of reference hereinbefore made in above entitled suit be, and the same is hereby set aside, and it is further ordered by the court that the complainant deliver up to the defendants or their attorney the said unpaid coupon interest notes, principal note and trust deed instcmter, and also that the complainant deliver instanter to the defendants or their attorney the abstract and insuranee policy which they hold upon the real estate referred to in above entitled cause, and it further appearing to the court that the said sum of $1,723.34 has been paid to the clerk of this court, “It is therefore ordered, adjudged and decreed that the said cause be, and the same is, hereby dismissed without further costs to either side. ’ ’ To reverse this decree the complainant below prosecutes this appeal. Appellees heretofore filed their motion to dismiss the appeal upon the ground, generally, that appellant, having obtained all the relief prayed for in his bill of complaint, or that he was entitled to by the order dismissing the bill upon payment of the amount due, is not aggrieved by such, order and cannot appeal therefrom, and the disposition of such motion to dismiss the appeal was reserved to the hearing. As an examination of the record discloses that the decree may properly be modified in the particular hereafter mentioned, the motion to dismiss the appeal is denied. It is not claimed by appellant that the amount paid by appellees to the clerk of the Superior Court for principal and interest, court costs, attorneys’ fees and master’s fees was inadequate or insufficient, and the specific finding of fact in the decree that appellees had so paid said amount is sufficient to support the order dismissing the cause without further costs. Complaint is made because the decree fails to direct the payment of the money to appellant. This complaint, made as justifying this appeal, is more chimerical than substantial. The money, having been paid to the clerk with the knowledge and sanction of the court, became a fund custodia legis, to be paid out upon the order of the court. Hammer v. Kaufman, 39 Ill. 87; Ferguson v. Sutphen, 8 Ill. 547. Hpon motion in the court below appellant might readily have procured an order directing the clerk to pay the money to him, and thereby avoided this appeal. If the attention of the court had been directed to the failure of the decree to award the payment of the money to appellant, the decree would, doubtless, have been so drafted as to accomplish that result. As it is conceded that appellant is entitled to the money deposited with the clerk of the Superior Court, this court may properly modify the decree, so as to thereby direct the payment of said money to appellant. The final ordering part of said decree, as above quoted, will, therefore, be modified so as to read as follows: “It is therefore ordered, adjudged and decreed that the clerk of this court pay said sum of $1,723.34 to the complainant and that the said cause be, and the same is, hereby dismissed without further costs to either side.” As so modified, said decree will be affirmed, and each of the parties will pay one-half of the costs in this court. Decree modified and affirmed.