Appeal from the Circuit Court of Marshall county; the Hon.
HENRY J. INGRAM, Judge, presiding. Reversed and remanded with
On October 2, 1953 Donald and Elma Langloss, husband and wife, executed their promissory note for $5,000.00 payable to the order of themselves which they endorsed and delivered to the Putnam County Bank. The principal sum was to be repaid in 60 monthly installments of $83.33 each and interest upon the principal sum was to be paid semi-annually at the rate of 5%. The note contained a warrant of attorney authorizing any attorney of any court of record to confess a judgment against the makers, at any time after the execution of the note, for the amount thereof, together with costs including an attorney fee of 10%.
To secure the payment of this note the makers executed a trust deed by which they conveyed to Ernest Bassi, the cashier of said bank, as trustee, certain described property upon which they resided and which was located in the City of Henry, Marshall County. This trust deed contained a provision that if default be made in payment of the note as specified, or interest thereon, that then the whole of said principal sum and interest should, at the option of the holder of the note, become immediately due and the trust deed subject to foreclosure. The trust deed also provided that upon the sale of the premises at such foreclosure sale there should be paid out of the proceeds of said sale all costs including reasonable attorney and solicitors' fees to be fixed by the court and taxed as costs.
On September 30th, 1955 the instant complaint was filed in the circuit court of Marshall County by the trustee and the bank to foreclose the trust deed. The plaintiffs were represented by Albert Pucci and the complaint recites that he is the "attorney and solicitor" for the plaintiff. The complaint was in the usual form and averred that the amount due the plaintiff was $3996.88 in addition to 10% thereof for attorney fees. Thereafter and on February 25, 1956 an amendment was filed which averred the failure of the debtors to pay the taxes upon the property covered by the trust deed and also charged that they had failed to obtain insurance upon the improvements thereon.
The defendants, by their answer as amended, admitted the execution of the note and trust deed but denied that they were liable for any attorney fees and denied most of the other allegations of the complaint as amended. The answer averred that on May 25, 1956 the defendants tendered the plaintiffs $4360.52, the amount due to that date for principal and interest, taxes and insurance premiums advanced together with interest on said sums so advanced but not including any attorney fees and alleged that the plaintiffs refused to accept said sum. The amended answer then alleged that Albert Pucci was the attorney for the plaintiffs; that he was elected County Judge of Putnam County, Illinois in November, 1954, qualified and was duly commissioned and at the time the complaint was filed herein he was discharging the duties of his office as County Judge and also practicing law as an attorney before the Courts of Illinois. The pleader concluded that plaintiff's attorney, being the County Judge of Putnam County, was disqualified from acting as an attorney for the plaintiff and that the agreement in the instant trust deed providing for the taxation of attorney fees for the benefit of Judge Pucci was contrary to public policy. Upon motion of plaintiff these paragraphs of the amended answer were stricken.
The defendants also filed a counterclaim which set forth an oral agreement between the bank and the defendants by the provisions of which defendants insisted that their default in making the monthly payments had been waived. A reply was filed denying the allegations of the counterclaim and the cause was referred to the master-in-chancery who heard the evidence and recommended a decree of foreclosure and sale as prayed.
Objections to the master's report were heard and overruled. The objections were ordered to stand as exceptions to the report of the master and after a hearing the chancellor overruled all exceptions, approved the report of the master and on March 18, 1960, rendered a decree of foreclosure and sale. The decree found $5624.01 due plaintiff from defendants for principal, interest, attorney fees, taxes and insurance premiums and directed that amount be paid within 30 days and in default of such payment that the premises be sold. Included in the amount of $5624.01 is $350.00 which the decree found to be a reasonable attorney fee for the services performed by Judge Pucci. To reverse this decree defendants appeal and plaintiffs cross-appeal insisting that the chancellor erred in not allowing an attorney fee of at least $500.00.
Upon the hearing before the Master, Ernest Bassi testified that he was cashier of the Putnam County Bank and that the board of directors of that bank, of which Judge Pucci is vice-president, directed him to file the instant foreclosure proceeding; that thereafter and on May 25, 1956 counsel representing the defendants tendered to him in cash, $4360.52 together with accrued costs to that date amounting to $26.00; that Mr. Bassi and counsel for defendants contacted Judge Pucci at his office in the court house where the question of attorney fees was discussed; that Judge Pucci stated he would accept $250.00, that counsel for defendants then stated that he had $100.00 of his clients' money and would advance $50.00 out of his own pocket with which to pay Judge Pucci for his services but that said offer was made without prejudice to his position with reference to attorney fees as set forth in his answer. The tender and offer were refused.
At the hearing Judge Pucci testified that he was an attorney at law; that he represented the plaintiffs in this proceeding and practiced his profession at Hennepin, Illinois; that he prepared and filed the instant complaint and the amendment thereto, had conferences with the cashier of the plaintiff bank on four occasions and appeared before the court on matters involving the pleadings on two occasions and also appeared twice before the master in the taking of the testimony. He testified that in his opinion a reasonable fee to be allowed the plaintiffs for his services, if a decree of foreclosure is entered, would be $775.00.
Counsel for plaintiffs also called O.B. Pace, Jr., who testified that he resides and practices law in Lacon, Illinois and had lived and practiced law there for 16 years. Mr. Pace further testified that he had heard Mr. Pucci testify as to the services he rendered the plaintiffs in this cause, had examined the files in the case and also the schedule of fees prepared by the Illinois State Bar Association and in his opinion the usual, customary and reasonable fee earned by counsel for the plaintiffs in connection with this foreclosure proceeding would be $500.00.
In support of their cross-appeal it is insisted that there is no testimony in this record except that of Messrs. Pucci and Pace; that their evidence is not inherently improbable and in the absence of any evidence contradicting their testimony there is no reason or justification for the chancellor fixing the amount of the attorney fee at $350.00. In view of our conclusion upon another feature of the case no consideration need be given the cross-appeal.
The question raised in the trial court and presented by this record determinative of this appeal is whether Judge Pucci, the duly elected, commissioned and acting county judge of Putnam County at the time this suit was filed and during its pendency in the circuit court and in this court, is authorized to appear for and represent the plaintiffs in the circuit court of Marshall County and there prosecute, in their behalf, as their attorney, this foreclosure proceeding?
Section 16 of Article 6 of the Constitution of 1870 fixes the salary of circuit judges and provides that "from and after the adoption of this constitution, no judge of the supreme or circuit court shall receive any other compensation, perquisite or benefit, in any form whatsoever, nor perform any other than judicial duties to which may belong any emoluments."
Town of Bruce v. Dickey, 116 Ill. 527, 6 N.E. 435, was an action brought to recover for professional services rendered by plaintiff to defendant as an attorney at law. The greater part of the services rendered defendant was while the plaintiff was a member of the Supreme Court of this State. The court held there was no constitutional prohibition which barred a judge from practicing law and in the course of its opinion the court said that the language used in the constitution was quite inappropriate "in which to couch a prohibition to conduct a law suit or to perform any other work other than judicial duties under a private contract for a compensation to be paid." The court, however, went on to say (p. 537), ...