{
  "id": 5182513,
  "name": "Piasa Bluffs Improvement Co. et al. v. John H. Evers",
  "name_abbreviation": "Piasa Bluffs Improvement Co. v. Evers",
  "decision_date": "1896-05-16",
  "docket_number": "",
  "first_page": "205",
  "last_page": "208",
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    {
      "type": "official",
      "cite": "65 Ill. App. 205"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
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  "jurisdiction": {
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    "name_long": "Illinois",
    "name": "Ill."
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  "last_updated": "2023-07-14T17:04:10.605056+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "Piasa Bluffs Improvement Co. et al. v. John H. Evers."
    ],
    "opinions": [
      {
        "text": "Me. Justice Boggs\ndelivered the opinion oe the Court.\nThis was a proceeding in chancery for the foreclosure of a real estate mortgage..\nThe mortgage contained following provision:\n\u201c The mortgagors further agree and consent that in any suit to foreclose this mortgage the court. may allow, in addition to the taxable costs and disbursements, whatever moneys the said creditor may necessarily and reasonably pay or become liable for on account of the services of any attorney, solicitor, or counsel in such suit, the said mortgagor hereby giving a lien upon the said premises for the same.\u201d\nThe court found there was $13,341 due upon the mortgage debt, and decreed same, together with the costs of \u25a0 suit, which should include a solicitor\u2019s fee in the sum of $600, should be paid in thirty clays, and if not paid, the mortgaged premises be sold and same paid out of the proceeds of the sale, etc.\nAppellant excepted to so much of the decree as required the payment of the solicitor\u2019s fee.\nThe provision in the mortgage authorized the inclusion of a sum for a solicitor\u2019s fee in the decree rendered in any suit brought to foreclose the mortgage.\nNo rule of law or equity forbids such an agreement, but courts of equity will enforce them. Heffron v. Gage, 149 Ill. 191.\nThe decisions in Nickerson v. Babcock, 29 Ill. 497, and Easter v. Boyle, 79 Ill. 325, are not applicable. They were actions at law, and the agreements to pay counsel fees were so construed that such fees were not due and payable when the actions were begun, and hence, according to a technical rule of law, not recoverable in such action, but only in separate suits. In the case at bar the agreement is, the fee may be recovered in the suit to foreclose.\nThe statute does not provide for the recovery of solicitor\u2019s fees as costs, and therefore the order in the decree that the costs of suit should include the solicitor\u2019s fee is irregular. But it is a mere irregularity in no wise prejudicial to the appellant, and therefore does not warrant reversal of the decree.\nWitnesses were allowed to testify that $600 was a reasonable fee for the solicitors in the case, without objection or cross-examination by the appellant.\nThe solicitor for appellee testified with some minuteness of detail as to the services he had rendered in the proceeding, and that $600 was reasonable compensation therefor, and that he had charged complainant that sum for his services.\nThis testimony warranted the allowance under the agreement, which was, that there should be allowed whatever money the mortgagor \u201c may necessarily and reasonably pay or become liable for on account of the services of any attorney,\u201d etc.\nThere is no error in the record. Decree affirmed.",
        "type": "majority",
        "author": "Me. Justice Boggs"
      }
    ],
    "attorneys": [
      "Thos. E. Eerns, attorney for appellants.",
      "Hamilton & Hamilton, attorneys for appellee."
    ],
    "corrections": "",
    "head_matter": "Piasa Bluffs Improvement Co. et al. v. John H. Evers.\n1. Solicitor\u2019c Fees\u2014In Foreclosure Suits.\u2014There is no rule of law or equity which forbids the parties to insert in a mortgage, an agreement providing that in a suit to foreclose it, the court shall allow in addition to the taxable costs and disbursements whatever moneys the creditor may have necessarily and reasonably paid or become liable to pay on account of the services of an attorney or solicitor in such suit, and to give a lien upon the said premises for the same.\n2. Same\u2014Not as Costs.\u2014The statute does not provide for the recovery of solicitor\u2019s fees as costs, and therefore an order in a decree of foreclosure that the costs of suit should include a solicitor\u2019s fee, is irregular; but it is a mere irregularity in no wise prejudicial and does not war-x-ant reversal of the decx-ee.\nMortgage Foreclosure.\u2014Appeal from the Circuit Court of Jersey County; the Hon. George W. Herdman, Judge, presiding. Heard in this court at the November term, 1895.\nDecree affirmed.\nOpinion filed May 16, 1896.\nThos. E. Eerns, attorney for appellants.\nThere is no statute in Illinois authorizing the allowance of solicitor\u2019s fees as part of the costs in a case. The discretion of a court of equity in awarding costs must be confined to the fees allowed by statute. Cooper v. McNeil, 9 Ill. App. 97.\nIf any solicitor\u2019s fees are earned in this case at all it is for this foreclosure proceeding and is not earned until proceedings are completed by a decree of foreclosure. Until decree of foreclosure is entered no solicitor\u2019s fees are due complainant, and hence the Circuit Court had no power to award complainant allowance for solicitor\u2019s fees in the same decree of foreclosure. Nickerson v. Babcock, 29 Ill. 497; Easter v. Boyd, 79 Ill. 325.\nHamilton & Hamilton, attorneys for appellee.\nWhatever may be the rule elsewhere, it is well settled in this State that when a mortgage provides for the allowance of a solicitor\u2019s fee in foreclosure of a mortgage to be paid out of the proceeds arising from a sale of the mortgaged property, it is not error for the court to decree the payment of a solicitor\u2019s fee as was done in this case. Heffron v. Gage, 149 Ill. 191; Guignon v. Union Trust Co., 156 Ill. 135.\nA solicitor\u2019s fee of five per cent was approved in the case of Goodwin v. Bishop, 145 Ill. 421, and ten per cent in Dorsey v. Wolfe, 142 Ill. 589.\nThe testimony of attorneys fixing the amount of appellee\u2019s solicitor\u2019s fees, as was done in this case, was proper. L. N. A. & C. Ry. Co. v. Wallace, 136 Ill. 92."
  },
  "file_name": "0205-01",
  "first_page_order": 201,
  "last_page_order": 204
}