Steger v. Steger

Mr. Justice Cartwright

announced the opinion of the court:

Louisa Steger was complainant in a bill for separate maintenance filed in the circuit court of Cook county against her husband, John V. Steger, the appellee. On her motion temporary alimony was allowed to her, including a solicitor’s fee of $100, which was paid to Hervey H. Anderson, her solicitor. The parties afterward, before a hearing, settled their marital difficulties and the complainant returned to her husband. Said solicitor for complainant then entered a motion for an additional allowance of solicitor’s fees, and there was a cross-motion by the defendant to dismiss the bill of complaint. On a hearing of these motions the court dismissed the bill, but ordered the defendant to pay to the clerk of the court, for the use of complainant, $1028 as an additional solicitor’s fee and $45 master’s fee which said solicitor had paid, making $1073, which the clerk, when paid to him, was ordered to pay over to said solicitor. From this decree the defendant appealed to the Appellate Court for the First District, and that court affirmed the decree except as to the payment of any moneys by John V. Steger, the defendant in the bill and appellant in that court, and in so far as it directed such payment by him it was reversed. The record of the Appellate Court shows that Louisa Steger refused to take any appeal from that judgment, and an order was made allowing the solicitor, Hervey H. Anderson, to appeal in her name, on giving bond and a bond of indemnity to' her. These bonds were died, and afterward the court granted an appeal to the solicitor in his own name. Appellee moves to dismiss the appeal, on the ground that Anderson was not a party to the suit in the circuit or Appellate Court and had no right to appeal.

The right of appeal is sought to be sustained, on the ground that the solicitor had an interest in the decree, and that this court entertained a writ of error in McCulloch v. Murphy, 45 Ill. 256, sued out by the solicitors of Mrs. Murphy. In that case there was a joinder in error, and no question was made or decided as to a right of appeal. It is not authority upon that question. The right of appeal exists only by virtue of the statute, and has no existence apart from it. Section 90 of the Practice act, which gives and regulates the right, provides that “any party to such cause shall be permitted to remove the same to the Supreme Court by appeal,” upon certain conditions. Anderson was not a party to the suit, and no right was given to him by this statute to appeal.

The court, was authorized to grant an allowance to appellee to enable her to prosecute her suit “as in cases of divorce.” Section 15 of the Divorce statute authorizes the court to “require the husband to pay to the wife, or pay into court for her use during the pendency of the suit, such sum or sums of money as may enable her to maintain or defend the suit.” The allowance authorized is to the wife, and to be paid to her or for her use. So far as the master’s fees are concerned, the solicitor who paid them has no more right of appeal than the master would have bad if not paid to him. It will hardly be claimed that the master could have appealed. If he could, then each witness and every officer to whom fees were due and unpaid in a divorce suit could have an appeal from a refusal to compel the defendant to pay money to the complainant sufficient to pay him. The solicitor’s fee is on the same footing as any other expense of maintaining or de- ■ fending the suit. The right given by the statute is in the wife, and the case does not come within any rule authorizing an appeal against her will. She has control of her own suit. McCulloch v. Murphy, supra.

The rule that the right of appeal is limited to parties to the suit is declared in the following cases: Rorke v. Goldstein, 86 Ill. 568; Hesing v. Attorney General, 104 id. 292; Louisville, Evansville and St. Louis Consolidated Railroad Co. v. Surwald, 150 id. 394.

The motion is sustained and appeal dismissed.

Appeal dismissed.