Anderson v. Steger (173 Ill. 112, 1898)

Mr. Justice Cartwright

delivered the opinion of the court:

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 proceeding's 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 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 §1120, that he had paid out §8 and received the §100 allowed by the court. The master charged §45 for his fees on this report, 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 ten days, §1028 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.) 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.

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. (Unknown Heirs of Langworthy v. Baker, 23 Ill. 484; Hammond v. People, 32 id. 446; Haines v. People, 97 id. 161; McIntyre v. Sholty, 139 id. 171; 7 Ency. of Pl. & Pr. 826; Shinn’s Pl. & Pr. sec. 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 conditions and by such persons as are authorized by statute. The statute confers new rights and prescribes a remedy unknown to the common law, which must be strictly pursued. (Lewis v. Shear, 93 Ill. 121; Shinn’s Pl. & Pr. 1013.) The term itself was unknown to the common law, and belonged wholly to the civil law and courts of chancery, and an appeal was the exclusive remedy for the review of chancery causes, to which class the suit for separate maintenance in this case belongs. There was for a long time great doubt and difficulty with respect to the mode of reviewing the decrees in equity of the Lord Chancellor, but, after a parliamentary struggle^ of much violence, it was established in the reign of Charles II that appeals would lie from them to the House of Lords. While a writ of error is a process of common law origin, which brought up for review only errors of law excepted to on the trial, and was the common law method of reviewing judgments at common law, an appeal removed the entire cause to the higher court, to be tried de novo on its merits, just as though it had never been tried in the inferior court, and was the method of reviewing chancery causes. By our statute the right of appeal is extended to common law causes and the right to a writ of error to chancery causes, and the technical distinction between the practice in the court of review in cases of appeal and writs of error is not observed, but if the suit follows the course of the common law it is reviewed for error, and if it is in the nature of a chancery cause it is considered upon Hie merits. If it is an appeal, however, it must be by a party to the suit, because it is only to parties that the statute extends the privilege of an appeal. Rorke v. Goldstein, 86 Ill. 568; Louisville, Evansville and St. Louis Railroad Co. v. Surwald, 150 id. 394; Hesing v. Attorney General, 104 id. 292; Steger v. Steger, supra.

The question whether the restrictions provided by statute as to appeals were equally applicable to a writ of error was first considered in 1830, in Clark v. Ross, Breese, 334, and it was then held that the same rules applied to a writ of error as to an appeal, and that the writ would lie only where an appeal would lie. In 1832, in the case of Bowers v. Green, 1 Scam. 42, the former decision was overruled. It was said that a writ of error was a writ of right at common law, applicable to all cases, and the only method t