Hough v. Wells, 86 Ill. App. 186 (1899)

Dec. 19, 1899 · Illinois Appellate Court

86 Ill. App. 186

William Hough v. George Wells, Aaron B. Mead, Trustee, Albert L. Coe, Successor in Trust.

1. Mortgage Foreclosure—Solicitor's Fees.—Where a trust deed provides for the allowance of a solicitor’s fee equal to five per centum upon the amount of the principal and interest in case of default, and a bill is filed to foreclose, it is proper to allow such a fee, an attorney practicing at the Chicago bar having testified that a solicitor’s fee equal to five per centum upon the amount found due is a customary and reasonable fee in the cause.

2. Depositions—Objections, When to be Taken.—Objections that depositions taken before the master are not signed by the witnesses should not be made for the first time in this court.

3. Appellate Court Practice—Statutory Damages on Affirmance. —Where an appeal or writ of error is prosecuted only for delay, a motion to affirm the judgment or decree, with statutory damages, is proper.

Mortgage Foreclosure.—Appeal from the Circuit Court of Cook County ; the Hon. Edward F. Dunne, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1899.

Affirmed, with five per cent damages.

Opinion filed December 19, 1899.

Charles Pickler, attorney for appellant.

Charles H. Hamill, attorney for appellees.

Mr. Justice Shepard

delivered the opinion of the court.

This appeal is from a decree of sale in a mortgage foreclosure proceeding. The decree finds that there is due to the appellee, for principal and interest, $2,268.68, and for solicitor’s fees five per centum thereon, to wit, $113.43, and orders a sale of the mortgaged premises unless the amount found due be paid within fi ve days.

The only errors urged are (1), the allowance of solicitor’s fees, and (2) that the depositions of the witnesses who testified before the master are not signed, and their signatures were not waived.

The trust deed provides for the allowance of a solicitor’s fee equal to five per centum upon the amount of the principal and interest, in case of default, and a bill being filed to foreclose. In addition thereto, it was testified, by an attorney practicing at the Chicago bar, that a solicitor’s fee equal to five per centum upon the amount found due was a customary and reasonable fee in the cause. There was no error in respect of the solicitor’s fee. Springer v. Cochran, 84 Ill. App. 644.

The objections that the depositions taken before the master are not signed by the witnesses is first made in this court.

This might have been good ground to suppress the evidence had a motion been entered in the Circuit Court for that purpose, but appellant has waived the objection by his silence. Made for the first time in this court, the objection comes too late. Jones v. King, 86 Ill. 225.

Appellee asks that the decree be affirmed with statutory damages of ten per centum for delay, under Sec. 23, Ch. 33, R. S., entitled “ Costs,” and, following Town v. Alexander, 85 Ill. App. 512, the court being of opinion that the appeal is prosecuted for delay, the order is that the decree be affirmed, and judgment entered against appellant in favor of appellee for five per centum on $2,268.68, the amount found due by the decree for principal and interest, and that execution issue therefor. Affirmed with five per cent damages.