Simpson v. Simpson, Gen. No. 46425

CourtUnited States Appellate Court of Illinois
Writing for the CourtMcCORMICK
Citation124 N.E.2d 573,4 Ill.App.2d 526
Decision Date15 February 1955
Docket NumberGen. No. 46425
PartiesEleanor P. SIMPSON, Appellant, v. Claude E. SIMPSON, Appellee.

Page 573

124 N.E.2d 573
4 Ill.App.2d 526
Eleanor P. SIMPSON, Appellant,
v.
Claude E. SIMPSON, Appellee.
Gen. No. 46425.
Appellate Court of Illinois, First District, Second Division.
Feb. 15, 1955.
Rehearing Denied March 7, 1955.

[4 Ill.App.2d 528]

Page 574

G. Donald Whitehouse, Chicago, for appellant.

Peden, Ryan & Andreas, Chicago, Sol R. Friedman & I. S. Friedman, Chicago, of counsel, for appellee.

McCORMICK, Presiding Justice.

This is an appeal from an order denying the plaintiff's petition for an allowance on account of suit money and attorney's fees incurred in enforcing a decree for divorce originally obtained in Tennessee and in defending it against the defendant's attempts to modify it. In the notice of appeal the plaintiff also includes an appeal from that portion of an order entering judgment in favor of the plaintiff for delinquent installments for child support accrued over a period of 6 1/2 years which did not allow the plaintiff the right to recover statutory interest on the successively maturing installments from the dates on which they fell due. This order had been entered more than 90 days before the notice of appeal was filed.

[4 Ill.App.2d 529] On July 31, 1946 the plaintiff obtained a divorce from the defendant in Hamilton County, Tennessee, on the ground of cruelty. By the terms of the decree she was awarded the custody of the minor son of the parties, and the defendant was directed to pay her the sum of $5 per week for the support and maintenance of the child. This order was subsequently increased to $20 per week. The defendant was in arrears for a period of 6 1/2 years. He had left the State of Tennessee, and had become a resident of the State of Illinois. On January 29, 1953 the plaintiff filed a supplemental complaint in the Superior Court of Cook County to establish and enforce the Tennessee decree which was answered. The trial court on May 6, 1953, after a hearing, entered a decree establishing, confirming and adopting the decree of divorce previously entered in Tennessee, together with the order which increased the award for the support of the minor child, as the decree and order of the Superior Court of Cook County. This decree set forth verbatim the Tennessee decree and order, together with applicable portions of the Tennessee divorce and interest Acts.

Page 575

On May 29, 1953 the plaintiff filed a petition for judgment for support money arrearage. The defendant filed an answer and a hearing was had on June 22, 1953, when the trial court entered judgment in favor of the plaintiff for the full principal amount claimed, $1,688.57, but refused to allow the plaintiff statutory interest on the successively maturing installments of child support from the dates on which they fell due.

On August 17, 1953 the plaintiff filed a petition asking for an allowance of suit money and attorney's fees, liability for which it was alleged had been incurred in enforcing the decree and defending it against the defendant's attempts to modify it. In this petition the plaintiff set up that her attorney had devoted 200 hours to enforcing and defending the decree; that the fair, [4 Ill.App.2d 530] average and reasonable value of such services was not less than $15 per hour for services rendered out of court and the sum of not less than $20 per hour in court, or a minimum of $3,000 without apportionment of the time spent in and out of court; that she had incurred expense of $40 for the employment of court reporters and additional expense in the amount of $140.08 in bringing two witnesses from Chattanooga to Chicago in connection with the hearing on the petition for judgment.

The defendant filed an answer in which he denied that the plaintiff was entitled to attorney's fees or suit money; and alleged that the matter had been previously adjudicated and that there was a final judgment therein; that the attorneys who filed the answer are not considered any longer of record in the matter, and prayed that the petition might be dismissed for want of equity.

On October 5, 1953 the plaintiff filed a notice properly served on the defendant on August 28, 1953 of the time and place of the hearing. On October 5, 1953 the court denied the petition of the plaintiff, and on December 31, 1953 notice of appeal was filed.

The plaintiff's theory of the case is that she was entitled to recover her expenses and attorney's fees and to recover interest on the delinquent installments of child support from the dates on which they fell due; and that section 74(1) of the Civil Practice Act (Ill.Rev.Stat.1953, chap. 110, par. 198) would permit this court to review the order entered by the trial court on June 22, 1953 in which the trial court fixed the amount of money due but refused to allow interest, as well as the order entered by the trial court on October 5, 1953 denying the plaintiff's application for suit money and solicitor's fees.

As to the judgment entered June 22, 1953 the plaintiff contends that the court erred in denying interest. [4 Ill.App.2d 531] The defendant first argues that this court has no right to consider any error in such judgment or order because of the fact that no notice of appeal was filed within 90 days from the date of the entry of such order. The plaintiff's theory is that this court has such right under the provisions of section 74(1) of the Practice Act (Ill.Rev.Stat. chap. 110, par. 198), which provides:

'(1) Every order * * * judgment or decree, rendered in any civil proceeding, if reviewable by the Supreme or Appellate Court of this State by writ of error, appeal or otherwise, shall hereafter be subject to review by notice of appeal * * *. Such appeal shall be deemed to present to the court all issues which heretofore have been presented by appeal and writ of error.'

Prior to the enactment of the Practice Act a litigant could obtain a review of a judgment or decree either by appeal or writ of error or by both of these modes of appellate procedure. Bradford Supply Co. v. Waite, 392 Ill. 318, 64 N.E.2d 491. The right to a writ of error was extended to chancery cases. Anderson v. Steger, 173 Ill. 112, 50 N.E. 665; Leland v. Leland, 319 Ill. 426, 150 N.E. 270. A writ of error brought up the entire record. Drummer Creek Drainage Dist. v. Roth, 244 Ill. 68, 91 N.E. 63.

Page 576

Since the passage of the Practice Act, two cases have been before our Supreme Court involving substantially the same factual situation. In Bride v. Stormer, 368 Ill. 524, 15 N.E.2d 282, 284, which was a foreclosure suit, the appellants sought to obtain a deficiency decree against the receiver and Stormer, the maker of the notes and trust deed. The Circuit Court on November 19, 1936,...

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7 practice notes
  • Strom v. Strom, Gen. No. 46880
    • United States
    • United States Appellate Court of Illinois
    • April 9, 1957
    ...where substantial matters remain to be decided, the order is not final. Simpson v. Simpson, 1955, 4 Ill.App.2d [13 Ill.App.2d 358] 526, 124 N.E.2d 573; People ex rel. Nelson v. Stony Island State Savings Bank, 1934, 355 Ill. 401, 189 N.E. 267; Hunter v. Hunter, 1881, 100 Ill. 519. The motio......
  • Atwater v. Atwater, No. 57668
    • United States
    • United States Appellate Court of Illinois
    • March 1, 1974
    ...payments. (See: Pope v. Pope, 2 Ill.2d 152, 117 N.E.2d 65; Gregory v. Gregory, 52 Ill.App.2d 262, 202 N.E.2d 139; Simpson v. Simpson, 4 Ill.App.2d 526, 124 N.E.2d 573; Wadler v. Wadler, 325 Ill.App. 83, 59 N.E.2d 505). In these cases, however, the husband charged with the non-payment refuse......
  • Mederacke v. Becker, Gen. No. 10599
    • United States
    • United States Appellate Court of Illinois
    • March 8, 1965
    ...These cases, Bride v. Stormer, 368 Ill. 524, 15 N.E.2d 282; Biagi v. O'Connor, 18 Ill.2d 238, 163 N.E.2d 461; and Simpson v. Simpson, 4 Ill.App.2d 526, 124 N.E.2d 573, consider the question of whether or not certain decrees were final and appealable when entered and whether such decrees cou......
  • McKeon v. McKeon, Gen. No. 46376
    • United States
    • United States Appellate Court of Illinois
    • February 15, 1955
    ...Garrett, 252 Ill. 318, 96 N.E. 882. The trial court erred in denying the petition of the defendant and counterplaintiff to vacate the [4 Ill.App.2d 526] decree granting a divorce to the plaintiff and dismissing the counterclaim of the defendant. The plaintiff and counterdefendant should hav......
  • Request a trial to view additional results
7 cases
  • Strom v. Strom, Gen. No. 46880
    • United States
    • United States Appellate Court of Illinois
    • April 9, 1957
    ...where substantial matters remain to be decided, the order is not final. Simpson v. Simpson, 1955, 4 Ill.App.2d [13 Ill.App.2d 358] 526, 124 N.E.2d 573; People ex rel. Nelson v. Stony Island State Savings Bank, 1934, 355 Ill. 401, 189 N.E. 267; Hunter v. Hunter, 1881, 100 Ill. 519. The motio......
  • Atwater v. Atwater, No. 57668
    • United States
    • United States Appellate Court of Illinois
    • March 1, 1974
    ...payments. (See: Pope v. Pope, 2 Ill.2d 152, 117 N.E.2d 65; Gregory v. Gregory, 52 Ill.App.2d 262, 202 N.E.2d 139; Simpson v. Simpson, 4 Ill.App.2d 526, 124 N.E.2d 573; Wadler v. Wadler, 325 Ill.App. 83, 59 N.E.2d 505). In these cases, however, the husband charged with the non-payment refuse......
  • Mederacke v. Becker, Gen. No. 10599
    • United States
    • United States Appellate Court of Illinois
    • March 8, 1965
    ...These cases, Bride v. Stormer, 368 Ill. 524, 15 N.E.2d 282; Biagi v. O'Connor, 18 Ill.2d 238, 163 N.E.2d 461; and Simpson v. Simpson, 4 Ill.App.2d 526, 124 N.E.2d 573, consider the question of whether or not certain decrees were final and appealable when entered and whether such decrees cou......
  • McKeon v. McKeon, Gen. No. 46376
    • United States
    • United States Appellate Court of Illinois
    • February 15, 1955
    ...Garrett, 252 Ill. 318, 96 N.E. 882. The trial court erred in denying the petition of the defendant and counterplaintiff to vacate the [4 Ill.App.2d 526] decree granting a divorce to the plaintiff and dismissing the counterclaim of the defendant. The plaintiff and counterdefendant should hav......
  • Request a trial to view additional results

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