Burrows v. Merrifield , 243 Ill. 362 ( 1909 )

Mr. Justice Hand

delivered the opinion of the court:

It is provided by section 18 of chapter 33 of the Revised Statutes (Hurd’s Stat. 1908, p. 583,) that “upon the complainant dismissing his bill in equity, or the defendant dismissing the same for want of prosecution, the defendant shall recover against the complainant full costs,” and that the recovery of costs in all other cases in chancery not otherwise directed by law shall rest in the discretion of the court. . It was held in McAnrow v. Martin, 183 Ill. 467, that the compensation of a receiver, including his solicitor’s fees, falls within the meaning of the term “costs,” as used in the Cost act. When, therefore, the complainants dismissed their bill the defendants were entitled to recover full costs as a matter of right, and the recovery of such compensation and solicitor’s fees as costs did not rest in the discretion of the court. (Askew v. Springer, 111 Illl. 662; see, also, Highley v. Deane, 168 id. 266, and Link Belt Machinery Co. v. Hughes, 195 id. 413.) We think, therefore, that the complainants having filed a bill and caused a receiver to be appointed and then dismissed their * bill, the court was bound, under section 18 of the Cost act, to tax the compensation of the receiver, including his solicitor’s fees, against the complainants as costs, and that the Appellate Court did not err in affirming the order of the circuit court taxing the compensation and solicitor’s fees of the receiver against complainants as costs.

The rule announced in Askew v. Springer, Highley v. Deane and Link Belt Machinery Co. v. Hughes, supra, is an exception to the rule announced in Wilson v. Clayburgh, 215 Ill. 506.

It appears from the record that the court fixed the amount of the receiver’s fees and his solicitor’s fees prior to the time when the order was entered directing that said receiver’s fees and solicitor’s fees be paid by the complainants. At that time said receiver’s fees and solicitor’s fees were not adjudged against the complainants and the complainants could not have appealed from said order. The appeal to the Appellate Court brought up for review in that court the question of the allowance by the court of the receiver’s and solicitor’s fees, and as the evidence upon which the order allowing said receiver’s and solicitor’s fees was based was not preserved in the record by a certificate of evidence or otherwise, the Appellate Court did not err in reversing the order fixing the amount of said fees. (McMullen v. Reynolds, 209 Ill. 504.) The cross-errors, therefore, must be overruled.

The judgment of the Appellate Court will be affirmed.

Jtidgment affirmed.