Ennesser v. Hudek

• Decision Date: 01 November 1897
• Citation: 169 Ill. 494,48 N.E. 673
• Parties: ENNESSER v. HUDEK et al.
• Court: Illinois Supreme Court

169 Ill. 494

48 N.E. 673

ENNESSER

v.HUDEK et al.¹

Supreme Court of Illinois.

Nov. 1, 1897.

Appeal from appellate court, First district.

Bill by Margaret Ennesser to foreclose a trust deed executed by Hallman & Ennesser. There was a cross bill by Apolena Hudek, setting up a mortgage of the same date, but later record. A decree giving complainant's trust deed priority over the Hudek mortgage was reversed by the appellate court (66 Ill. App. 609), and complainant appeals. Affirmed.Francis T. Colby (Shope, Mathis, Barrett & Rogers, of counsel), for appellant.

Allen & Blake, for appellee Apolena Hudek.

Johnson & Morrill, for appellee Prosperity Loan & Building Ass'n.

CARTWRIGHT, J.

The controversy between the parties to this appeal relates to the order of priority of two trust deeds upon the property of Hallman & Ennesser securing the appellant, Margaret Ennesser, and the appellee Apolena Hudek, respectively. There is a first mortgage on the property to the Prosperity Building & Loan Association. The premises are insufficient security for all the debts secured. The debtors, Hallman & Ennesser, are insolvent, and the question is, which of the trust deeds is next in order after said first mortgage? The cause was referred to a master in chancery, who took the evidence, and reported the same, together with his conclusion that the trust deed securing appellee was the second lien. The chancellor sustained exceptions of Margaret Ennesser to the report, and found the issues in her favor, and that her trust deed was second only to that of the building and loan association, and he accordingly set down the lien of appellee under her trust deed as third in the order of priority. Appellee prosecuted a writ of error from the appellate court for the First district to the circuit court of Cook county, where the cause was heard, and the appellate court reversed the decree, and remanded the cause to the circuit court, with directions to enter a decree in conformity with the master's report.

Appellant complains of the judgment of the appellate court, and attributes it mainly to a doctrine obtaining in that court that the findings of the master on questions of fact are conclusive upon the chancellor and courts of review, and cannot be disturbed by either unless in case of clear mistake or fraud. Appellee insists that the doctrine stated is correct, and that for this reason the action of the chancellor in sustaining exceptions to the report as against the weight of the evidence was wrong, and the judgment of the appellate court was right. We do not agree with appellee in this contention. A master in chancery is a ministerial officer, appointed by the court to assist by performing various services, mainly of a clerical character, in the progress of a case. In Schuchardt v. People, 99 Ill. 501, it was said: ‘The origin and duties of that office are thus explained by Bouvier's Law Dict. p. 121, tit. ‘Masters in Chancery’: ‘The chancellors, from the first, found it necessary to have a number of clerks, were it for no other purpose than to perform the mechanical part of the business,-the writing. These soon rose to the number of twelve. In process of time, this number being found insufficient, these clerks contrived to have other clerks under them, and then the original clerks became distinguished by the name of ‘masters in chancery.’ He is an assistant to the chancellor, who refers to him interlocutory orders for stating accounts, computing damages, and the like. Masters in chancery are also invested with other powers by local regulations.'' The 12 masters in chancery included the master of the rolls, and bills were referred to them to determine whether they contained matters scandalous or impertinent; and they were also required, after interlocutory decrees, to state accounts, examine into incumbrances and debts, compute damages, and clear up facts, so that a final decree might do complete justice. Blackstone says: ‘These matters are always by the decree on the first hearing referred to a master in chancery to examine, which examinations frequently last for years; and then he has to report the fact, as it appears to him, to the court. This report may be excepted to, disproved, and overruled; or otherwise is confirmed and made absolute, by order of the court.’ 3 Bl. Comm. 453. The office has been abolished in England, but, as shown by the above and other decisions, is of substantially the same nature in this state. In McClay v. Norris, 4 Gilman, 370, the practice, when any question of fact has been referred to the master, is stated to be to file objections before the master before the report is turned into court; and it is said: ‘If the objections are not sustained, and the master adheres to his report, it is returned into court, when the party objecting may file exceptions, upon the hearing of which the whole evidence is brought forward, and passes in review before the court.’ The same practice was again stated to be the correct one in Brockman v. Aulger, 12 Ill. 277. If the parties are content with the findings of the master, and make no objections or exceptions thereto, they cannot complain if the report is adopted by the court; but, if the findings are excepted to, they may require the court to pass on them, and approve or disregard them, as they may appear to be in accordance with or against the weight of the evidence. In Boston v. Nichols, 47 Ill. 353, the decree left the master to find the amount due on the last note, and, in default of payment, to sell certain premises, and it was said: ‘It is not the province of the master to adjudge and finally determine upon the rights of the parties. That belongs to the chancellor, and he cannot delegate it to another. The master is a ministerial, and not a judicial, officer. The court may, by special reference, require him to hear evidence, and find and report facts to the chancellor; but before such findings can become binding it must be approved by the court.’ In Rankin v. Rankin, 36 Ill. 293, a decree was rendered by the circuit court, by consent of parties, referring the cause to a master ‘for hearing and determination on the merits,’ and requiring him ‘to render a decree on the merits, and report on the same.’ On a final hearing there was a decree for complainant based on the report, which was reversed by this court, not for mistake or fraud, but for error. It was held that the parties were not concluded by the consent or report; that the reference could only be considered as a reference for the opinion of the master, and for the preparation of a decree by him, subject to the supervision of the court to which he was required to report, and that the action of the master is always subject to the supervision of the court. The case of De Leuw v. Neely, 71 Ill. 473, was for the foreclosure of a mortgage. By the decree a sale of the premises was ordered, with direction to pay the costs and debt and any unpaid taxes. The decree was reversed, and it was said of the master in chancery: ‘His duties are strictly of ministerial character. The court has no authority to invest him with power, in the nature of judicial duties, to adjudicate upon the amount or legality of such taxes as he may discover on the collector's books. These are strictly judicial questions, and can only be settled by the court.’ In Hards v. Burton, 79 Ill. 504, it was held manifest error, in a decree for the foreclosure of a trust deed and mortgages, where a sale was ordered for the amount due, to order that, if default should be made in the payment of notes still to fall due, the master should sell for the satisfaction of the same. The court said: ‘It was, in effect, allowing the master in chancery to find the amount due, and to, in effect, decree its sale, and then proceed to execute his decree. The master has no such power. He is but the ministerial officer of the court, to perform such duties as may be required of him by the chancellor in the performance of his judicial functions. His powers are delegated to him by the court, and the court can confer on him no judicial powers. These powers are vested in the judiciary, and cannot be delegated to any but persons belonging to that department of government. All the acts of the master become binding only by being approved and adopted by the court. Hence the court alone can find, adjudge, and decree so as to bind the parties and the subject-matter.’ Wilhite v. Pearce, 47 Ill. 413, was a partition suit, in which there were infant defendants, whose rights were protected by this court in a reversal of the decree; and it was said: ‘The court should have found the amount of the lien, and that it was then subsisting; and, if referred to the master to ascertain the amount, he should have reported his findings to the court for approval. The master had no right to adjudicate on this question.’

The judicial power of the state is vested in the courts named in the constitution and those created under its provisions. Masters in chancery are not included; and, although in England the masters in chancery were learned, and commonly doctors of the civil law, in this state, under the decision in Schuchardt v. People, supra, a master need not be learned in law or a lawyer. He is a mere assistant of the chancellor, whose duties and powers are, we think, made sufficiently clear by the foregoing authorities. Under the act to regulate the practice in courts of chancery, when a cause in which the parties have no right to demand a trial by jury is at issue, the court may hear the evidence, or, under section 40, may direct an issue or issues therein to be tried by a jury, or, under section 39, may refer the cause to a master in chancery or special commissioner to take and report the evidence, with or without his conclusions thereupon. Starr & C. Ann. St. c. 22, §§ 39, 40. If the cause is heard by the chancellor, and the witnesses are examined before him in open court, a court of...