194 Ill. 228 | Ill. | 1901
delivered the opinion of the court:
It is first contended that the court erred in allowing solicitor’s fees. We deem the allegations of the bill sufficient to justify the allowance of solicitor’s fees, and the plaintiffs in error being in default and having failed to except to the master’s report, and a decree pro confesso having been entered against them, they are precluded from questioning the competency or sufficiency of the evidence to support the decree. (Pennell v. Lamar Ins. Co. 73 Ill. 303; Cheltenham Improvement Co. v. Whitehead, 128 id. 279; Kinsella v. Cahn, 185 id. 208; Manchester v. McKee, 4 Gilm. 511; Glos v. Swigart, 156 id. 229; Monarch Brewing Co. v. Wolford, 179 id. 252.) We are therefore of the opinion the court did not err in allowing said solicitor’s fees.
It is next contended that the court erred in allowing $20 for the master’s report and taking testimony, $2.50 for approving decree and seventy-five cents for real estate board fee. Master’s fees are fixed by section 20 of chapter 53, (Hurd’s Stat. 1899, p. 882,) the material portions of which are as follows: “For taking depositions and certifying, for every one hundred words, fifteen cents; for taking and reporting testimony under order of court, the same fee as for taking depositions; for computing the amount due on which to render a decree, and making a report thereof to court, where no oral evidence is taken, two dollars; for examining questions of law and fact in issue by the pleadings, and reporting conclusions, whenever specially ordered by the court, a sum not exceeding ten dollars. * * * And no other fee or allowance whatever shall be made for services by masters in chancery. 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.”
There are only 1245 words in the depositions taken in the case, and the fee for taking them is only $1.86. The master did nothing else except to compute the amount due, and for that work the statute fixed his fee at two dollars. Therefore, under the statute, his total fees for master’s report in taking testimony should have been fixed at $3.86, and no more. The last clause of the said section 20 has no bearing on the case. The clauses providing for taking depositions and computing the amount due apply to the exclusion of all the others. They, when read together, mean that for taking and reporting testimony under order of court and for computing the amount due on which to render a decree the master shall be allowed fees at the sums named. The charge of the master for approving decree and the charge for real estate board fee should have been disallowed. It does not appear that the master approved the decree. No statute or special order required him to approve it. There is no such thing known to the law as a real estate board fee to be taxed as costs in any case'. Nothing can be allowed as costs, either by the clerk or by the court, but items declared by the statute to be such. Constant v. Matteson, 22 Ill. 546; Conwell v. McCowan, 53 id. 363; Chase v. DeWolf, 69 id. 47; Smith v. McLaughlin, 77 id. 596; Byers v. First Nat. Bank, 85 id. 423; Hutchinson v. Hutchinson, 152 id. 347.
It is further contended that the decree of foreclosure and sale, and all the proceedings thereunder, by reason of the error in taxing costs, should be reversed and set aside. We do not agree with this contention. The record appears to be free from error, with the exceptions indicated with reference to the taxing of costs, and such error can be cured without a reversal of said decree of foreclosure and sale and the setting aside of the sale made thereunder.
The decree of foreclosure and sale of the superior court of Cook county, and the judgment of the Appellate Court affirming the same, and all the proceedings thereunder, with the exception of the taxing of said master’s fee at $20, the allowance of $2.50 for approving decree and seventy-five cents for real estate board fee, are affirmed, and as to $16.14 of said $20 allowed for master’s report and taking testimony, and $2.50 for approving decree and seventy-five cents for real estate board fee, aggregating the sum of $19.39, said decree of the superior court and the judgment of the Appellate Court are reversed, and as to that part of said decree the cause is remanded to the superior court of Cook county, with directions to that court (it appearing that all the costs have been paid by a sale of said premises to the defendant in error the said trust company) to credit upon said deficiency decree the sum of $19.39, that amount having been illegally taxed as costs against the plaintiffs in error. It is further ordered that the plaintiffs in error and the defendants in error each pay one-half of the costs occasioned by reason of the suing out of this writ of error.
Decree affirmed in part and reversed in part and remanded, vuith directions.