delivered the opinion of the court:
The first point urged by appellant as ground for reversal is, that the Appellate Court exceeded its jurisdiction in assessing statutory damages of two and one-half per centum against appellant, and in favor of appellees Alexander and Boar dm an, on the amounts found by the decree to be due them, respectively, for the reason that, in the opinion of that court, the appeal was prosecuted merely for delay.
Section 23 of chapter 33 of the Revised Statutes of this State provides in cases of appeal or writ of error, that if, in the opinion of the Supreme Court, such appeal or writ of error is prosecuted only for delay, the person prosecuting the appeal or writ of error shall pay to the opposite party a sum not exceeding ten per centum on the amount of the judgment or decree so attempted to be reversed, at the discretion of the court. Appellant contends that the Appellate Courts have no power, under that statute, to assess such damages. The statute was passed by the legislature in 1874. Subsequently, in 1877, the statute creating the Appellate Courts was enacted. Paragraph 10 of the latter act provides that “the process, practice and pleadings in said courts shall be uniform, and shall be the same as the process, practice and pleadings now prescribed or which may hereafter be prescribed in and for the Supreme Court of this State so far as applicable.” The Appellate Courts were established to relieve the Supreme Court in the increased business, which rendered it impossible for it to promptly dispose of the cases submitted to it for decision. In furtherance of that purpose the legislature enacted the foregoing statute,— that is, to prevent delays in the administration of justice,—and hence provided that the “practice” in those courts should be the same as that of the Supreme Court, “so far as applicable.” Before the establishment of the Appellate Courts a dissatisfied litigant might appeal to this court, and it, in its discretion, could assess the statutory penalty for delay. With the creation of the intermediate courts of appeal there existed the same reasons for vesting in them the power to punish one who might appeal merely for delay. It is unreasonable to suppose that the legislature intended that an unsuccessful litigant might have one appeal for delay without becoming liable for damages, but if he prosecuted a further appeal to this court could be mulcted for his dilatory conduct. Appellant makes no complaint of injustice done him by the assessment of damages, and we are of the’ opinion that, construing together the two statutes referred to, the Appellate Court had full jurisdiction to so assess him. See Baker v. Prebis, (ante, p. 191.)
As fpr the second point urged by appellant, that the Appellate Court erred in affirming the decree of the trial court allowing a solicitor’s fee to appellee Boardman, we held in the recent case of Shaffner v. Appleman, 170 Ill. 281, that where a second mortgagee seeks foreclosure subject to a prior mortgage without making" the prior mortgagees parties to his bill or seeking to affect their rights, and the prior mortgagees are permitted to answer the bill and file a cross-bill to foreclose their mortgage, upon foreclosure being" decreed a solicitor’s fee might be allowed in pursuance of a provision in the prior mortgage and included in the amount found due thereunder. This case is decisive of the point herein urged by appellant.
No other errors are urged, and for. the reasons stated the judgment of the Appellate Court will be affirmed.
Judgment affirmed.