Simpson v. Simpson

• Decision Date: 15 February 1955
• Docket Number: Gen. No. 46425
• Parties: Eleanor P. SIMPSON, Appellant, v. Claude E. SIMPSON, Appellee.
• Court: United States Appellate Court of Illinois

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.

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.

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.

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, 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. 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.

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, in a foreclosure decree, dismissed the complaint for want of equity as to the receiver, and on December 29, 1936 entered a deficiency decree against Stormer. Notice of appeal was filed March 12, 1937. The notice of appeal included an appeal from the decree of November 19, 1936. The court reviewed both decrees. The court says, after quoting section 74 of the Practice Act:

'Under the earlier practice, a decree determining the rights of the parties was not subject to review in an appeal from a subsequent decree in the same suit, which did not involve those rights; but a writ of error, sued out after the later decree was rendered, could be made use of to review the entire record, including the earlier decree. Drummer Creek Drainage District v. Roth, 244 Ill. 68, 72, 91 N.E. 63, 64. In that case we held: 'While this court has held that in partition proceedings the decree which finally adjudicated the rights and interests of the parties could not be reviewed on appeal from a later decree in the same proceeding which did not affect such interests of the parties (Crowe v. Kennedy, 224 Ill. 526, 79 N.E. 626; Piper v. Piper, 231 Ill. 75, 83 N.E. 100;), we have also permitted, in partition proceedings, the original decree fixing the rights of the parties and a later decree taxing costs against certain of the parties to be reviewed by one writ of error. (Smith v. Roath, 238 Ill. 247, 87 N.E. 414).'

'Appellants could have reviewed both these decrees by a single writ of error before the adoption of the Civil Practice Act, and now, in view of section 74(1), supra, both decrees may be reviewed by one appeal. The contention that the notice of appeal filed March 12, 1937, could not include the decree of November 19, 1936, cannot be sustained.'

Rabe v. Rabe, 386 Ill. 600, 54 N.E.2d 518, 520, was a partition suit in which decrees of partition, sale and confirmation of the sale were entered by the court. After the sale an accounting was had before a master and a report of distribution prepared which was objected to by the defendant, which objections were overruled on March 30, 1943. The defendant then made a motion to vacate the previous orders and decrees and to dismiss the suit for partition. This was denied, and notice of appeal was filed June 28, 1943. The notice of appeal also prayed that the correctness of the decree of the court confirming distribution, the decree of the court confirming the master's report of the sale, and the decree of the Circuit Court which approved and confirmed the master's report awarding partition be also considered and determined on the appeal. The court found that the decree of partition and the decree of the court confirming the master's report of sale were final orders and that the time in which to appeal from both such decrees had passed at the time the defendant gave his notice of appeal in the case, and says:

'Where a decree of partition definitely settles the interests of the parties and appoints commissioners to make partition it is a final decree, and if any of the parties are dissatisfied with it an appeal should be taken in accordance with the statute, as such decree cannot be questioned upon an appeal from a subsequent decree ordering a sale of the premises. White v. Van Patten, 280 Ill. 215, 117 N.E. 472; Lantz v. Lantz, 261 Ill. 194, 103 N.E. 749; Bergman v. Rhodes, 334 Ill. 137, 165 N.E. 598, 65 A.L.R....