Neiman v. Wheeler , 1899 Ill. App. LEXIS 475 ( 1900 )

Mr. Presiding Justice Sears

delivered the opinion of the court.

The court was perhaps warranted upon the evidence in finding that there was a contract for usurious interest, and therefore in refusing to allow the full claim of appellant under her mortgage. But there is no theory upon which the court could properly deny relief in the allowing of the claim for principal (less credits), and costs and reasonable solicitor’s fees. The mortgage provides for an amount of solicitor’s fees which we agree with the chancellor in viewing as exorbitant. But this does not preclude the right to a reasonable solicitor’s fee, to be fixed by the court. We regard the evidence of appellees as wholly insufficient to establish the contention that the provision for solicitor’s fees was inserted in the mortgage after the execution of it, and we are of opinion that the finding of the master in this respect was right. The tender was clearly insufficient, for it did not include solicitor’s fees nor costs. The award of the costs in a chancery proceeding is within the discretion of the chancellor; but that discretion must be fairly exercised and may be reviewed. Linton v. Quimby, 57 Ill. 271; North v. Roodhouse, 52 Ill. App. 17; Hollingsworth v. Koon, 117 Ill. 511.

The decree orders a dismissal of the bill of complaint and at the same time awards the sum of $43 in the hands of the clerk to appellant. The bill should not have been dismissed. The complainant was entitled to some measure of relief, and was in effect awarded relief by the decree which at the same time ordered the bill dismissed.

The decree ■ is reversed and the cause remanded with directions to enter a decree for the amount due to appellant, without the usurious interest, and for the costs, and for such an amount as reasonable solicitor’s fees as the court may determine to be equitable. For the latter determination further evidence may be heard if deemed necessary. Be-versed and remanded with directions.