Soles v. Charles C. Sheppard.

• Decision Date: 30 September 1881
• Citation: 1881 WL 10587,99 Ill. 616
• Parties: JAMES SOLESv.CHARLES C. SHEPPARD.
• Court: Illinois Supreme Court

99 Ill. 616

1881 WL 10587 (Ill.)

JAMES SOLES

v.CHARLES C. SHEPPARD.

Supreme Court of Illinois.

Filed at Ottawa May 14, 1881.Rehearing denied September Term, 1881.

OPINION TEXT STARTS HERE

WRIT OF ERROR to the Appellate Court for the Second District;-- heard in that court on appeal from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. MCKENZIE & CALKINS, for the plaintiff in error:

If the law is as this court declared it to be in Nickerson et al. v. Babcock, 29 Ill. 497, and emphatically reaffirmed it to be in Easter et al. v. Boyd, 79 Ill. 325, then a solicitor's fee, which by the terms of the contract was due only after foreclosure or after bill filed for that purpose, could not be allowed under the prayer of the cross-bill. If such is the law, then the final decree of the circuit court in this cause, which allowed Charles C. Sheppard $175 as his solicitor's fees, was “contrary to law and equity.” “The final decree was for the payment of an excessive amount,” and the court was influenced by improper evidence.

At all events, no law is better settled than the following: A party can not have relief under an original bill by reason of rights acquired after the filing thereof, nor will amending the bill be of any avail. 2 Daniell's Ch. Pr. 1594, and note; Story's Eq. Pl. secs. 335 and 336, and note; Saunders v. Frost, 5 Pick. 276; Gore v. Lyford, 44 N. H. 528; Stafford v. Howlett, 1 Paige, 200; Burke v. Smith, 15 Ill. 158; Mix v. Beech, 46 Id. 311.

Should this court modify the decree because of its errors, and adjust it on the basis of a remittitur of the $175 and interest, the defendant in error must pay the costs, both in the Appellate and in this court, because in neither has he been right. Welch v. Johnson, 76 Ill. 295; Chauncey v. City National Bank, 77 Id. 563; Nilly v. Halley, 78 Id. 611; Pigley v. Boynton, 79 Id. 351; Dowty v. Holtz, 85 Id. 525.

Mr. H. BIGELOW, for the defendant in error:

It is insisted by counsel for plaintiff in error that the solicitor's fees were not due at the time the bill was filed, and that under the rule laid down by the Supreme Court in Nickerson et al. v. Babcock, 29 Ill. 497, and Easter et al. v. Boyd, 79 Id. 325, they were improperly included in the decree.

I see no reason why a person may not contract to allow judgment to be entered against him on a claim before it is due; and hence I insist, that unless the cases relied upon by plaintiff in error are exactly in point they ought not to govern the decision in this case, even should the court hold that the fees were not due before suit brought.

The agreement to pay attorney's fees is a part of the security itself, and the fees are substantially costs incident to the collection of the money secured by the mortgage. Clawson et al. v. Munson, 55 Ill. 394; Dunn v. Rogers et al. 43 Id. 260.

It is proper to render judgment for attorney's fees as a part of the damages, where the power of attorney attached to a note so provides. Keith et al. v. Kellogg et al. 97 Ill. 147. Mr. JUSTICE WALKER delivered the opinion of the Court:

Plaintiff in error had executed a mortgage to Luther Smith, on a quarter section of land in Knox county, to secure $1300. Subsequently plaintiff in error executed another mortgage on the same land to defendant in error to secure the payment of $3000, with ten per cent interest. Smith having died, his executor, at the February term, 1876, of the Knox circuit court, exhibited his bill against plaintiff in error and defendant in error, to foreclose Smith's mortgage. Defendant in error set up in his answer his mortgage, and also that he had paid $119 to redeem the premises from a sale for taxes. He also filed a cross-bill to foreclose his mortgage, and to enforce his lien for the $119 he had paid to redeem the land from the sale for taxes, and offered to pay anything that was due on Smith's mortgage, and prayed to be subrogated to Smith's rights, and asked a reasonable allowance for a solicitor's fee, claiming $200 therefor.

At the time the cause came on for hearing, defendant in error paid to Smith's executor, and he received in open court, the amount due on the Smith mortgage. The cause then progressed to trial under the original and cross-bills, when the court rendered a decree in favor of defendant in error for the amount due on both mortgages, and also a solicitor's fee of $175, and the costs of the suit, and ordered the payment of the money thus found by the decree within thirty days, and in default of payment that the premises be sold. It appears from the record that they were sold and bid in by defendant in error in satisfaction of the decree, and the sale was reported to and approved by the court, and plaintiff in error brings the record to this court on error, and urges a reversal.

This controversy turns on a provision in the mortgage of defendant in error, which is this: “It is understood that if this mortgage shall be foreclosed, or a bill filed for that purpose for the non-payment of the interest, principal, or any part thereof, when the same shall become due and payable, a reasonable sum for complainant's solicitor's fees, to be fixed by the court, shall be included in the decree; or in case of settlement before decree, taxed as costs.”

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