Symms v. City of Chicago

Mr. Justice Stein

delivered the opinion of the court.

First. We cannot concur in plaintiffs’ contention that the court erred in fixing the master’s compensation “ because the allowance is not supported by any evidence in the record.” The master as an officer of the court reported to it fully and specifically what services he had performed. So far as the record discloses there was no controversy but that he had performed them; and there is no claim now that he has not. Moreover the court finds that the master “ has performed services herein as shown by his certificate of charges filed herein for which he is reasonably and justly entitled to compensation in the sum of $31)0.” This finding rendered it unnecessary to preserve the evidence, if any was needed. Village of Harlem v. R. R. Co., 202 Ill. 301.

It is urged further that the services for which $300 were allowed included items for which no fee was provided by law. What these items are is not pointed out. We have looked into all and are of opinion that the court properly allowed for all under the last paragraph of section 20 of chapter 53 of the Revised Statutes. Whether the total allowance is “ exorbitant and excessive ” as claimed is a question we cannot decide as the evidence is not before us. In the absence thereof it is to be presumed that the allowance was a reasonable and proper one. The action of the court in this behalf is a matter of discretion and not subject to review unless there has been an abuse of discretion. Ling v. King, 91 Ill. 571.

Second. Although the testimony taken by the master was not filed in court, the clerk taxed the costs for taking it at $362.55; and it is therefore contended that he had nothing before him to enable him to make the computation. If the clerk erred in this regard it was the privilege and the duty of plaintiffs in error to apply to the court for a relaxation of the costs, under section 26 of chapter 33 of the Revised Statutes, relating to costs. Hot having done so, a court of review has no power to pass upon the question. Miller v. Adams, 4 Scam. 195.

Third. It remains to be determined whether the court acted correctly in dismissing the bill for failure of plaintiffs to file the master’s report as they were ordered to do. The court had of its own motion directed a reference so that the master might report whether or not a preliminary injunction should issue. It was for the court to select the method which it deemed best fitted to inform it upon the question of issuing the injunction; but the plaintiffs were not bound to go before the master and introduce evidence. They had a right to abandon their application for a temporary injunction if they so desired. This same right they still had after they had introduced evidence and the master had made his report. Their failure to file it did not deprive them of the right to maintain and prosecute their bill, and it was error for the court to dismiss the same.

The decree is reversed and the cause remanded for further proceedings not inconsistent with the views herein expressed.

Reversed and remanded.