Dow v. Eyster

• Citation: 1875 WL 8609,79 Ill. 254
• Parties: SAMUEL K. DOWv.BEN. EYSTER.
• Decision Date: 30 September 1875
• Court: Supreme Court of Illinois

79 Ill. 254

1875 WL 8609 (Ill.)

SAMUEL K. DOW

v.BEN. EYSTER.

Supreme Court of Illinois.

September Term, 1875.

APPEAL from the Circuit Court of Cook county; the Hon. HENRY BOOTH, Judge, presiding.

Mr. F. J. SMITH, for the appellant.

Messrs. E. & A. VAN BUREN, for the appellee.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

This was an action, brought by appellant, to recover from Benj. Eyster for professional services rendered for Mrs. Jane E. Eyster, the wife of Benj. Eyster, in a suit for divorce, brought by the former against her husband in 1869.

A trial of the cause was had before the court without a jury, by agreement, and upon the evidence the court rendered a judgment against the plaintiff for costs, to reverse which this appeal was brought.

It appears, from the evidence, that, while the cause for divorce was pending, the appellant obtained an order that the defendant in the action should pay the complainant $30 per month alimony, and also $50 to appellant, the solicitor of the complainant, as solicitor's fees. This order the defendant observed, and the money was paid.

It also appears that the complainant obtained a decree for divorce, which, among other things, provides that “complainant shall henceforth have the care, custody and education of the said Cora and Benjamin Eyster, children of said parties; and it also appearing to the court that the defendant has deeded to one Samuel T. Atwater the real estate in said bill mentioned, in trust for the use and benefit of said complainant and his children, Cora Eyster and William Benjamin Eyster, during her lifetime, remainder in fee to said children, and has also furnished and paid to said Atwater $2000, to be by said Atwater expended in the improvement of said real estate, in lieu of alimony and of dower, it is hereby decreed that the marriage in this case is dissolved without alimony, now or at any time hereafter to be granted, and said complainant is hereby debarred from any right of dower in the lands of said defendant, now or hereafter to be acquired.”

While it is true that, prior to the revision of 1874, the statute did not confer express authority on courts to allow alimony, pending an action for divorce, to enable a wife to employ counsel, and otherwise prepare for the trial of her cause, yet it was held by this court, in Petrie v. The People, 40 Ill. 334, that, in the absence of statutory provision, the court had the power to award alimony pendente lite, and money to defray the expenses of the litigation, upon the principle that alimony was an incident to the divorce; and as we had adopted the common law, the right existed as a part of the common law jurisdiction.

When, therefore, the action for divorce was pending, the court had the power to decree alimony pendente lite, and money to pay solicitors' fees, and that power in the court was exercised.

In awarding solicitors' fees, ...