Anderson v. Steger

• Citation: 50 N.E. 665,173 Ill. 112
• Parties: ANDERSON v. STEGER et al.
• Decision Date: 21 April 1898
• Court: Supreme Court of Illinois

173 Ill. 112

50 N.E. 665

ANDERSON

v.STEGER et al.¹

Supreme Court of Illinois.

April 21, 1898.

Error to appellate court, First district.

Bill by Louisa Steger against John V. Steger for separate maintenance. Bill dismissed. An order against defendant for payment of solicitor's fees for complainant was reversed by the appellate court (67 Ill. App. 533), and from the judgment H. H. Anderson, solicitor for complainant, appealed, which appeal was dismissed (46 N. E. 888), and thereupon said solicitor for complainant brings error from the judgment of the appellate court. Affirmed.

H. H. Anderson, for plaintiff in error.

W. J. Lavery, for defendant in error John V. Steger.

CARTWRIGHT, J.

Louisa Steger, who appears on the record in this court as one of the defendants in error, became a complainant in the circuit court of Cook county August 11, 1894, by filing her bill against her husband, John V. Steger, the other defendant in error, for separate maintenance. On her petition, an order was made requiring him to pay her $40 per week as temporary alimony, and $100 as solicitor's fees, to enable her to prosecute her suit, which solicitor's fees were paid to her solicitor, Hervey H. Anderson, plaintiff in error. The bill was answered, and a cross bill for divorce was filed by said John V. Steger. The cross bill was answered, after which no further proceedings occurred in court until March 18, 1896, when the cause was called for hearing; and it was suggested to the court by counsel for each side that it was claimed the controversy had been settled, and the complainant in the original bill had returned to her husband. Counsel for John V. Steger accordingly moved the court to dismiss his cross bill, and the original bill of his wife. Plaintiff in error moved that he be allowed time to make inquiries in the matter, and made a motion in his own behalf for the allowance of additional solicitor's fees for the services he had rendered to Mrs. Steger. The court dismissed the cross bill, but continued the motion to dismiss the original bill, and the motion for allowance of solicitor's fees. On March 20, 1896, plaintiff in error moved that the order dismissingthe cross bill be set aside. On May 8, 1896, on motion of plaintiff in error, a reference was ordered to a master in chancery to take testimony, and report the value of his services rendered to Mrs. Steger from the date of his engagement up to April 26, 1896. The master reported that the services of plaintiff in error were worth $1,120; that he had paid out $8, and received the $100 allowed by the court. The master charged $45 for his fees on this report, and they were paid by plaintiff in error. On July 28, 1896, the motions were considered, and the court refused to set aside the order dismissing the cross bill, but ordered John V. Steger, defendant in the original bill, to pay to the clerk of the court, for the use of plaintiff in error, within 10 days, $1,028 for fees, and $45 for master's fees advanced as aforesaid, which sums the clerk was ordered to pay plaintiff in error. The original bill was dismissed at cost of complainant, but the decree recited that the court retained jurisdiction to enforce compliance with the orders for the payment of money. From that decree John V. Steger prosecuted an appeal to the appellate court, where the decree was reversed in so far as it directed the payment of any money by him to the clerk, to be paid over to plaintiff in error, and it was affirmed in all other respects. Mrs. Steger refused to take an appeal from the judgment of the appellate court, and that court allowed an appeal in her name to plaintiff in error, on his giving a bond of indemnity to her, and also allowed him an appeal in his own name. The appeal was dismissed by this court on the ground that plaintiff in error was not a party to the suit, and had no right to an appeal, and could not appeal, against the will of his client, in her name. Steger v. Steger, 165 Ill. 579, 46 N. E. 888. Defendant in error John V. Steger has entered his motion in this case to dismiss the writ of error on the same grounds on which the appeal was dismissed, and this motion brings up the question whether the same restrictions apply to a writ of error as in case of appeal.

A writ of error was a writ of right at the common law, and, as a general rule, may be prosecuted as a matter of right in all civil cases. Langworthy v. Baker, 23 Ill. 430;Hammond v. People, 32 Ill. 446;Haines v. People, 97 Ill. 161;McIntyre v. Sholty, 139 Ill. 171, 29 N. E. 43; 7 Enc. Pl. & Prac. 826; Shinn, Pl. & Prac. § 1038. An appeal, on the other hand, is a purely statutory right, created by statute in connection with the constitution, and must be exercised in such cases, upon such conditions, and by such persons as are authorized by statute. The statute confers new rights, and prescribes a remedy, unknown to the common law, which must be strictly pursued. Lewis v. Shear, 93 Ill. 121; Shinn, Pl. & Prac. § 1013. The term itself was unknown to the common law, and belonged wholly to the civil law and courts of chancery; and an appeal was the exclusive remedy for the review of chancery causes, to which class the suit for separate maintenance in this case belongs. There was for a long time great doubt and difficulty with respect to the mode of reviewing the decrees in equity of the lord chancellor, but, after a parliamentary struggle of much violence, it was established in the reign of Charles II. that appeals would lie from them to the house of lords. While a writ of error is a process of common-law origin, which brought up for review only errors of law excepted to on the trial, and was the common-law method of reviewing judgments at common law, an appeal removed the entire cause to the higher court, to be tried de novo on its merits, just as though it had never been tried in the inferior court, and was the method of reviewing chancery causes. By our statute the right of appeal is extended to common-law causes, and the right to a writ of error to chancery causes, and the technical distinction between the practice in the court of review in cases of appeal and writs of error is not observed; but, if the suit follows the course of the common law, it is reviewed for error, and, if it is in the nature of a chancery cause, it is considered upon the merits. If it is an appeal, however, it must be by a party to the suit, because it is only to parties that the statute extends the privilege of an appeal. Rorke v. Goldstein, 86 Ill. 568; Railroad Co. v. Surwald, 150 Ill. 394, 37 N. E. 909;Hesing v. Attorney General, 104 Ill. 292; Steger v. Steger, supra.

The question whether the restrictions provided by statute as to appeals were equally applicable to a writ of error was first considered in 1830, in Clark v. Ross, Breese, 261; and it was then held that the same rules applied to a writ of error as to an appeal, and that the writ would lie only where an appeal would lie. In 1832, in the case of Bowers v. Green, 1 Scam. 42, the former decision was overruled. It was said that a writ of error was a writ of right at common law, applicable to all cases, and the only method to remove a cause from an inferior court of record to a superior court; that an appeal ought to be considered a cumulative remedy; that restrictions upon the right to use the remedy of appeal could not with propriety be extended to the other mode of redress, by a writ of error, and the writ should be given the same scope as at common law. We think that the same rule should apply here, and that...