Anderson v. Steger

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

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.

[173 Ill. 114]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 dismissing[173 Ill. 115]the 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,

[50 N.E. 666]

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.

[173 Ill. 116]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...