Lane v. Frake

70 Ill. App. 303, 1897 Ill. App. LEXIS 515

Opinion

Mr. Justice Waterman

delivered the opinion of the Court.

The appeal was properly taken to the Circuit Court. The cause is not, within the meaning of the Constitution of this State, a criminal or quasi criminal case. ■ Webster v. The People, 14 Ill. 365; Wiggins v. City of Chicago, 68 Ill. 372; City of Chicago v. Enright, 27 Ill. App. 559.

This court does not affirm judgments because of a failure on the part of appellees to file briefs.

The statute under which this action is brought is as follows:

“ If any mortgagee or trustee in a deed in the nature of a mortgage * * * knowing the same to be paid, shall not, within one month after the payment of the debt secured by such mortgage or trust deed and request and tender of his reasonable charges, release the same, he shall, for every such offense, forfeit and pay to the party aggrieved the sum,” etc. Illinois Eevised Statutes, Chap. 95, Sec. 10. .

The statute, being penal, is to be strictly construed. •'

Appellant, Avhen he demanded the release, avrs not the OAvner of the premises which he sought to have released, nor had the entire mortgage debt been paid.

The contention of appellant is that the trustee should have determined that he, Lane, was entitled to have a release of a portion of the mortgaged property, and that the portion selected by appellant Avas such portion, both of Avhich were disputed questions, about which courts have held variant opinions. Appellant contends that for not having decided such questions correctly the trustee must pay a penalty of $150.

The judgment of the Circuit Court is affirmed.