{
  "id": 4986530,
  "name": "The German-American Savings, Loan and Building Association et al. Plaintiffs in Error, vs. John C. Trainor et al.-(Harriet H. Leaming, Exrx. Defendant in Error.)",
  "name_abbreviation": "German-American Savings, Loan & Building Ass'n v. Trainor",
  "decision_date": "1920-06-16",
  "docket_number": "No. 13245",
  "first_page": "483",
  "last_page": "490",
  "citations": [
    {
      "type": "official",
      "cite": "293 Ill. 483"
    }
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    "name_abbreviation": "Ill.",
    "id": 8772,
    "name": "Illinois Supreme Court"
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    "name_long": "Illinois",
    "name": "Ill."
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    {
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        2602111
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    {
      "cite": "238 Ill. 526",
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    {
      "cite": "35 Ill. 534",
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        5257323
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  "last_updated": "2023-07-14T16:00:23.784670+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "The German-American Savings, Loan and Building Association et al. Plaintiffs in Error, vs. John C. Trainor et al.\u2014(Harriet H. Leaming, Exrx. Defendant in Error.)"
    ],
    "opinions": [
      {
        "text": "Mr. Justice Carter\ndelivered the opinion of the court:\nIn 1912 a bill filed in the circuit court of Cook county to foreclose certain trust deeds was dismissed for want of equity. From that .decree an appeal was prayed to the Appellate Court. On that appeal Henry C. Bartling, as liquidator, and Alexander Klappenbach and C. M. Staiger, (who has since deceased,) entered themselves as security for the costs. Pending the decision of the cause in the Appellate Court the parties to the litigation reached a settlement and filed satisfaction pieces in the trial court and apparently also in the Appellate Court. Thereafter there was a dispute as to whether certain fees of the master on the original hearing had been paid, and over objection of plaintiffs in error the trial court fixed tire fees of the master and ordered a fee bill to issue therefor. From this last finding of the trial judge the cause was appealed to the Appellate Court for the First District with reference to this order as to the payment of master\u2019s fees, and tfye decree and order of the trial court in that regard were affirmed in the Appellate Court. From this last judgment and order of the Appellate Court the proceeding as to the fees has been brought to this court by petition for certiorari.\nThe original decree dismissing the foreclosure bill for want of equity provided that \u201cthe complainants shall pay the costs of this proceeding and that execution issue therefor.\u201d During the progress of the original foreclosure suit the cause was referred to Jeremiah Learning, master in chancery, and he performed certain services as such master. In May, 1907, the cause came up before Judge Honor\u00e9, of the circuit court of Cook county, upon motion of the defendant for rule on complainant to file the master\u2019s report, and the court entered an order reciting that it appearing that prior to the expiration of the term of office of Jeremiah Learning as master in chancery he had performed services as s\u00fcch in said cause, for which a reasonable compensation was the sum of $1018, and that said charge had not been paid, it was therefore ordered that the suit be dismissed unless said charge was paid within fifteen days, and further provided that complainant and defendant were each to deposit one-half of said sum of $1018 with the clerk of the court and the latter \u2019was to then turn the same over to the master. The plaintiffs in error did not comply with said order, although no objection was made by either party to the entering of the same. Nothing further seems to have been done about the payment bf master Learning\u2019s fees prior to the entering of the final decree in the case. After the expiration of Learning\u2019s term of office the cause was referred to John W. Ellis, master in chancery, and in due course his \u25a0 fees as master were taxed as costs. There was an appeal to the Appellate Court as to the allowance of master Ellis\u2019 fees, and that order was affirmed. The appeal to the Appellate Court as to the final decree was affirmed on March io, 1914. In the meantime Learning died, and his widow and sole beneficiary, the defendant in error herein, duly qualified as executrix of his estate. Satisfaction pieces were filed with the clerk of the circuit court in April, 1914, but neither the mandate nor the certified copy thereof affirming the original decree in the Appellate Court as to said original decree of foreclosure was filed in the circuit court until after said satisfaction pieces were filed therein. After said satisfaction pieces were filed, it appears that on the margin of the decree in the circuit court the clerk of that court entered the following order: \u201cThis judgment- satisfied in full of record as per satisfaction piece filed this 10th day of April, 1914.\u201d\nNothing more seems to have been done concerning the payment of the fees of master Learning until December 20, 1917, when counsel for defendant in error, without notice, requested the clerk of the circuit court to tax the sum of $1018 as costs in said foreclosure suit in favor of master Learning, and the clerk thereupon did so, and on the same day issued a writ addressed to the sheriff of Cook county, directing him, in case said sum was not paid within thirty days after demand, to levy the same on the property of the plaintiffs in error. This writ was served on Bartling, as liquidator,, on December 31, 1917; and on Klappenbach on February 26, 1918. In May, 1918, the certified copies of the orders of this court in the matters of the affirmance by this court of the order allowing the fees of master Ellis and-also of the foreclosure decree were filed in the cim edit court: Thereafter, oh June 26,- 1918, on motion of plaintiffs in error\u2019the writ which had been issued to the sheriff by the clerk was quashed by the trial court. On the same day, on motion of the solicitor for defendant in error, and over objection of plaintiffs in error, the court entered an order finding that master Learning\u2019s fees, amounting to $1018, had been ordered paid \u201cand taxed as costs\u201d but had never been paid, and directing the clerk of the circuit court to amend his records, in so far as they sho.wed a satisfaction of the decree, by adding to the satisfaction piece the following: \u201cThis certificate is not intended to include or.satisfy master Jeremiah Learning\u2019s fees for $1018, which have been allowed by the court and are still unpaid.\u201d Counsel for plaintiffs in error excepted to the entering of this order. On the same day, on motion of counsel for defendant in error, and over objection of plaintiffs in error, the court entered another order, reciting that it\" appearing that Jeremiah Learning, as master in chancery, rendered services herein, which were fixed and allowed by the court at the sum of $1018; and it appearing that such sum has never been paid, and that Learning died on January 30, 1908, and that his widow is his sole beneficiary and the duly qualified executrix of his estate; and it appearing that the decree entered July 27, 1912, was affirmed on appeal and that the order allowing the fees of master Ellis was affirmed on appeal, and that certified copies of the orders of the Appellate Court affirming said decree and said order \u201care now, and more than ten days last past have been,\u201d on file with the clerk of the circuit court, \u201cas required by statuteand it \u2022 appearing that master Learning\u2019s fees have never been paid and that defendant in error is entitled to receive said amount of said master\u2019s fees and is entitled to have issued by the clerk a fee bill and execution for the collection thereof by the sheriff; and it appearing that Klappenbach and Staiger, as sureties, executed and entered themselves as security for costs in said suit \u201cfor the protection of the officers of this court and all costs of suit, * * * and the liability of said persons as security for costs has become fixed by the orders and decrees entered in this caseand it appearing that by reason thereof \u201csaid Klappenbach and Staiger became obligated to pay any and all costs, including master Learning\u2019s fees, and by reason of the statute it became the duty of the clerk to tax the costs of said suit,\u201d and that Staiger has since died; and it appearing that said costs were properly taxed by the clerk, including the fees of master Learning, \u201cthe taxing of which by the clerk is hereby approved;\u201d and it appearing that-the statute of Illinois makes it the duty of the clerk to issue an execution against the complainant and both of the persons entering themselves as security for costs, or either of them; and it appearing that under the statute the liability for master Learning\u2019s fees have become fixed; \u201cit is ordered that the clerk of this court do issue forthwith a fee bill and execution in accordance with the statute of Illinois, directing the sheriff to collect as costs from [complainants] the master\u2019s fees due Jeremiah Learning\u201d as fixed by the order of May 20, 1907, at $1018. Plaintiffs in error from this order appealed to the Appellate Court for the First District, where that order was affirmed, and on petition for certiorari this writ of error was sued out.\nThe order of the circuit court of May 20, 1907, fixed master Learning\u2019s fees for his services at $1018. These fees-were subject \u201cto be taxed as other costs.\u201d (Hurd\u2019s Stat. 1917, sec. 9, p. 1913.) Even though it be conceded, as argued by counsel for plaintiffs in error, that this order provided that plaintiffs in error should only pay half of these costs and that provision could not be changed without a further order of court, there was such an ord\u00e9r by the court when the bill was dismissed, \u201cthat the complainants shall pay the costs of this proceeding.\u201d It then became the duty of the clerk of the circuit court, when proper application was made, to tax master Learning\u2019s fees as costs against the complainants. (Hurd\u2019s Stat. 1917, sec. 25, p. 783.) It is further provided in the same chapter, in section 26, that \u201cif any person shall feel himself aggrieved by the taxation of any bill of costs by the clerk\u201d he may apply to the court for an order to re-tax the same. The statute also provides that upon a proper prcecipe filed .in the office of the clerk of the court he may issue a fee bill for costs any time within seven years after the rendition of the judgment or accruing of the right to issue the same. (Hurd\u2019s Stat. 1917, par. 28, p. 643.)\nThe trial court had originally exercised its discretion as to the allowance of the matter\u2019s fees. Ordinarily the payment of costs is not enforced until final judgment is rendered and the costs have been taxed and inserted therein. (5 Ency. of Pl. & Pr. 254; 15 Corpus Juris, 182.) In this State it has been held a fee bill could be entered against one of the parties without regard to the result of the suit. (Eads v. Couse, 35 Ill. 534.) There were no objections made to the allowance of the fees to the master at the time the order was originally entered, neither was any made as to Learning\u2019s fees at the time the final decree was entered taxing the costs of the case to plaintiffs in error. The original decree of the trial court being appealed to the Appellate Court, under the authorities the costs could not be re-taxed pending the appeal. (15 Corpus Juris, 188.) Pending the appeal the circuit court was without authority to make any order affecting the interests of any of the parties or in any way affecting the costs. (Merrifield v. Cottage Piano Co. 238 Ill. 526, and cases cited.) The satisfaction papers were filed in the circuit court pending the appeal to the Appellate Court, but no one representing master Learning appears to have had anything to do with the filing of-these papers or to have consented in .any way thereto, and we do not think the parties could defeat his fees already allowed without his consent or that of his duly authorized representative.\nThe master\u2019s fees having been fixed by order of court and the final decree dismissing the bill providing that plaintiffs in error should pay the costs, when these fees were not paid plaintiffs in error were liable for their payment on the fee bill issued against them for their collection. (Camp v. Morgan, 21 Ill. 255.) These fees, under the cases already cited, could be collected by fee bill any time within seven years after the rendition of the final judgment; and this would be the proper method even though, under the statute, they might be recovered by separate proceedings in assumpsit. (Doyle v. Wilkinson, 120 Ill. 430.) We think the reasoning in this last decision fully answers the argument of counsel for the plaintiffs in error that these fees, conceded to be meritorious, could only be collected by a separate proceeding.\nThe satisfaction pieces, upon which the clerk entered the order satisfying the original judgment while the cause was pending in the Appellate Court, being entered without authority pending the appeal, renders it unnecessary to consider or decide the question whether the trial court was without authority to enter the order amending the record as to. said satisfaction of judgment by providing, as hereinbefore stated, that such satisfaction entry should not apply to the fees of master in chancery Learning.\nUnder the provisions of the statute, fairly construed, and the decisions of this court heretofore referred to, the conclusion, in our judgment, follows that the trial and Appellate Courts rightly held plaintiffs in error liable for the costs in question.\nThe judgment of the Appellate Court will be affirmed.\nJudgment affirmed.",
        "type": "majority",
        "author": "Mr. Justice Carter"
      }
    ],
    "attorneys": [
      "Sabath, Stafford & Sabath, (Charles B. Stafford, and Thomas M. Zasadil, Jr., of counsel,) for plaintiffs in error.",
      "Abner Smith, for defendant in error."
    ],
    "corrections": "",
    "head_matter": "(No. 13245.\nJudgment affirmed.)\nThe German-American Savings, Loan and Building Association et al. Plaintiffs in Error, vs. John C. Trainor et al.\u2014(Harriet H. Leaming, Exrx. Defendant in Error.)\nOpinion filed June 16, 1920.\n1. Costs\u2014when clerk must tax master\u2019s fees as costs. Where a decree dismissing a bill for foreclosure orders the complainants to pay the costs of the proceeding, it is the duty of the clerk, when proper application is made, to tax the master\u2019s fees as costs against the complainants.\n2. Same\u2014circuit court cannot enter order affecting costs while appeal is pending in Appellate Court. While an appeal is pending in the Appellate Court the circuit court is without authority to make any order affecting the interests of any of the parties or in any way affecting the costs, although satisfaction papers are filed in the circuit court before the filing of the mandate of the Appellate Court.\n3. Masters in chancery\u2014parties cannot defeat master\u2019s fees by filing satisfaction papers. Where the master\u2019s fees have been allowed in a foreclosure suit and the costs ordered taxed against the complainants the parties cannot defeat the master\u2019s fees by agreeing to a settlement and filing satisfaction papers in the circuit court pending an appeal to the Appellate Court, where no one representing the master or his personal representative had anything to do with the filing of said papers or in any way consented thereto.\n4. Same\u2014when personal representative entitled to fee bill for collection of master\u2019s fees. Where a final decree dismissing a bill for foreclosure provides that the complainants shall pay the costs and the master\u2019s fees have been fixed by order of the court, the personal representative of the master is entitled to a fee bill and to an execution against the complainants for the collection of the master\u2019s fees, which remain unpaid after his death.\n5. Same\u2014master\u2019s fees may be collected by fee bill within seven years after judgment although recoverable in separate suit. Master\u2019s fees which have been taxed as costs may be collected by fee bill any time within seven years after rendition of final judgment, although they may also be recovered by separate proceeding in assumpsit.\nWrit of Error to the, Second Branch Appellate Court for the First District;\u2014heard in that court on appeal from the Circuit Court of Cook county; the Hon. Oscar M. Torrison, Judge, presiding.\nSabath, Stafford & Sabath, (Charles B. Stafford, and Thomas M. Zasadil, Jr., of counsel,) for plaintiffs in error.\nAbner Smith, for defendant in error."
  },
  "file_name": "0483-01",
  "first_page_order": 483,
  "last_page_order": 490
}