{
  "id": 2998168,
  "name": "John Stelk, Individually and as Trustee, Complainant, v. Sophie, also known as Sophie Hoff, et al., Defendants; Emil W. Weber, Individually and as Successor in Trust (Cross Complainant), Appellee, v. John Stelk, Individually and as Trustee (Cross Defendant), Appellant",
  "name_abbreviation": "Stelk v. Sophie",
  "decision_date": "1919-12-31",
  "docket_number": "Gen. No. 24,951",
  "first_page": "249",
  "last_page": "252",
  "citations": [
    {
      "type": "official",
      "cite": "216 Ill. App. 249"
    }
  ],
  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "199 Ill. App. 512",
      "category": "reporters:state",
      "reporter": "Ill. App.",
      "case_ids": [
        2971323
      ],
      "opinion_index": 0,
      "case_paths": [
        "/ill-app/199/0512-01"
      ]
    }
  ],
  "analysis": {
    "cardinality": 328,
    "char_count": 6165,
    "ocr_confidence": 0.537,
    "pagerank": {
      "raw": 4.03580807328026e-08,
      "percentile": 0.08674443954068364
    },
    "sha256": "a0afaf633b64e10780eaf7cbd333c2c4c5f27ce3f4b50404fc347ed8b8f103be",
    "simhash": "1:c8fb6f29c021a460",
    "word_count": 1031
  },
  "last_updated": "2023-07-14T20:03:51.229139+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "John Stelk, Individually and as Trustee, Complainant, v. Sophie, also known as Sophie Hoff, et al., Defendants. Emil W. Weber, Individually and as Successor in Trust (Cross Complainant), Appellee, v. John Stelk, Individually and as Trustee (Cross Defendant), Appellant."
    ],
    "opinions": [
      {
        "text": "Mr. Justice Barnes\ndelivered the opinion of the court.\nThis appeal is from an order overruling exceptions to a master\u2019s report of sale and distribution under a decree of foreclosure, and merely calls for construction of that part of the decree directing the master to make distribution, which reads;\n\u201cOut of the proceeds of sale he shall retain his fees, disbursements and commissions, and see that all unpaid costs are paid to the persons entitled to receive the same. \u2019 \u2019\nImmediately following such direction are directions in the usual form to pay as far as the proceeds will reach, first, the amount found due to appellee Weber, the cross complainant, under his trust deed, and then the amount found due to appellant Stelk, the complainant, under his trust deed.\nThe owner of the property conveyed by the trust deeds was Sophie Hoff., The original bill was filed to foreclose appellant\u2019s trust deed, and the cross-bill to foreclose appellee\u2019s. The decree recognizes the equities of both so far as the right of each to foreclose is concerned, but gives priority of lien to appellee.\nOut of the amount realized from the sale the master retained his fees, disbursements and commissions incident to the sale and subsequent proceedings, and paid the balance to appellee, which was just sufficient to. cover the amount found due to him, together with his appearance fee and the amount of his solicitor\u2019s fees. The master further reported the amount due appellant and the sum of $317.50 for costs and master\u2019s fees and expenses advanced by him on the reference. This amount is also embodied in the clerk\u2019s bill of costs.\nIt is unquestioned that unless costs are otherwise apportioned under the discretionary power of the chancellor, they should be taxed against the unsuccessful party, who, in this \"case, so far as the primary object of both bill and cross-bill is concerned, was Sophie Hoff, and the decree directed the sale of the property on her failure to pay both appellee and appellant the sums due them respectively, and, as the decree recites, \u201calso the cost of this suit, including the master\u2019s fees on the reference herein, which fees are taxed at the sum of $232, and stenographer\u2019s fees which are hereby taxed at $60.\u201d As we construe the decree it contemplated that if Sophie Hoff did not pay the taxed costs they should be paid out of the proceeds of sale before satisfying any part of the amount decreed to be paid to either appellee or appellant. While the decree might have been more specific and required that appellant and appellee should first be reimbursed for costs advanced by them respectively, yet we find nothing in the decree that justifies a different intent. It was said in Babcock v. Farwell, 199 Ill. App. 512:\n\u201cThe costs decreed are costs in the cause, and while due primarily to the officers in wdiose favor the costs might in the first instance be taxed, still such costs, when advanced by the parties, are properly taxable as such, and the parties advancing the same are entitled to be reimbursed for such advances as costs due them in the cause.\u201d\nThat language is appropriate to the case at bar. The provision of the decree calling for construction directs the master to see that all \u201cunpaid costs\u201d are paid \u201cto the persons entitled to receive the same.\u201d They have not been paid by the unsuccessful party, Sophie Hoff, against whom they are taxed, and if not paid by her, who, if not the person advancing them, was entitled to receive the same? The costs so advanced by appellant, namely, costs of publication and clerk\u2019s, sheriff\u2019s and master\u2019s fees, were as necessary to the establishment of appellee\u2019s as appellant\u2019s claim.\nThe mere fact that appellee\u2019s lien was prior to that of appellant\u2019s furnishes no reason for satisfying appellee\u2019s lien before payment of costs taxed nbt against appellant but against the owner of the property out of which the liens of both appellant and appellee were decreed to be satisfied. We find nothing either in the language of the decree quoted, or any part of it, that justifies a different construction. We think the master should have first paid all the costs including those advanced by appellant before satisfying the amount found due under the respective deeds, and we so construe the language above cited, either when taken alone or in connection with every other part of the decree. Accordingly the order sustaining the master\u2019s report of distribution will be reversed with directions to proceed in conformity with the views expressed in tins opinion.\nReversed and remanded with directions.",
        "type": "majority",
        "author": "Mr. Justice Barnes"
      }
    ],
    "attorneys": [
      "Q-. A. Buresh, for appellant.",
      "Matthew P. Brady, for appellee."
    ],
    "corrections": "",
    "head_matter": "John Stelk, Individually and as Trustee, Complainant, v. Sophie, also known as Sophie Hoff, et al., Defendants. Emil W. Weber, Individually and as Successor in Trust (Cross Complainant), Appellee, v. John Stelk, Individually and as Trustee (Cross Defendant), Appellant.\nGen. No. 24,951.\n1. Mortgages, \u00a7 657 \u2014who liable for costs on foreclosure as being unsuccessful party. On proceedings to foreclose a trust deed in which a cross-bill to foreclose another trust deed is filed, where the decree directs the sale of the property, giving priority to cross complainant\u2019s lien, the owner of the property is the unsuccessful party and costs should be taxed against her.\n2. Mortgages, \u00a7 658*\u2014construction of foreclosure decree as to costs. A decree in foreclosure which directs that, out of the proceeds of the sale, the master \u201cshall retain his fees, disbursements and commissions, and see that all unpaid costs are paid to the persons entitled to receive the same,\u201d and then directs the order of distribution, is to be construed as requiring that all costs be paid, including those advanced by a party whose lien was postponed to that of another party, before the proceeds are distributed among the lienholders.\nAppeal from the Circuit Court of Cook county; the Hon. Merritt IW. Pinckney, Judge, presiding. Heard in the Branch Appellate Court at the March term, 1919.\nReversed and remanded with directions.\nOpinion filed December 31, 1919.\nQ-. A. Buresh, for appellant.\nMatthew P. Brady, for appellee.\nSee Illinois Notes Digest, Vois. XI to XV, and Cumulative Quarterly, same topic and section number."
  },
  "file_name": "0249-01",
  "first_page_order": 315,
  "last_page_order": 318
}