99 Ill. App. 454 | Ill. App. Ct. | 1902
delivered the opinion of the court.
We think it apparent from the record that the motion of Nathan Neufeld, made April 2, 1900, was unauthorized by appellee, and was made against her will. Her affidavit, filed in support of the motion to substitute Cantwell for Neufeld, as her solicitor, must have apprised the court that she was unwilling that anything should be done in the cause by Neufeld in her name. She had a clear legal right to discharge Neufeld as her solicitor and employ another, she being responsible to him for the consequences; and although Neufeld was her solicitor of record when the motion to substitute Cantwell for him was made, yet after being informed by her affidavit that she did not wish him to act further for her, we are of opinion that he had no right to make any motion in the cause in her name, and that the court should not have entertained his cross-motion. But, aside from this view, the decree can not be sustained. The order is: “It is therefore ordered that the defendant, John J. Lynch, pay to the clerk of this court, within one day from this date, for said complainant, the sum of two hundred and fifty dollars, to be devoted to the payment of solicitor’s fees of said Nathan Neufeld, which the clerk is directed to turn over to said Nathan Neufeld.” The order, in providing that the $250 shall be devoted to the payment of Neufeld’s fees, and that when the money is paid to the clerk he shall turn it over to Neufeld, is erroneous. In Anderson v. Steger, 173 Ill. 112, a similar order was made, and the court, commenting on the statutory provision for alimony pendente lite, say:
“This provision is in favor of the wife, so she may be able to present her cause to the court, to employ counsel and to make proper preparations for trial. She can not bind her husband to pay her counsel, and may be unable to prosecute her suit without the assistance of the court, and if her bill shows a meritorious cause of action and there is a showing of good faith on her part, the court will extend its aid under that statute. Harding v. Harding, 144 Ill. 588. The allowance, when made, is designed to meet all just and reasonable expenses to which she may be put, including the fees of officers and witnesses, taking depositions, expenses in attendance upon court and the services of her solicitor; and the fees of such solicitor are on no different footing from any other expenses which she may properly incur. The allowance is for her, and not for the officers or witnesses, the commissioners who may take depositions or the master who may perform services. So far as such expenses are concerned, if such costs are not paid the claim of the officer or witness is against her; and it would not be proper for the court to make orders in favor of such parties against the defendant, so as to bring into the suit all those parties, and give each one a separate writ of error in case the court should refuse to order defendant to pay his fee. Any motion for allowance under the statute must be in her name and the allowance is to be made to her and not to the party whom she employs. When collected, she may apply it as may be necessary for the prosecution of her suit. The right being in her, the decree of the Circuit Court should not, in any event, have been in favor of her solicitor, but should have followed the statute and required the money to be paid to her or to the clerk for her use. The Appellate Court would have been justified in reversing the decree for that reason, but it is also erroneous for other reasons.” Ib. 118-119.
In this case it is apparent from the evidence reported by the master, including KTeufeld’s own testimony, that all of Heufeld’s claim, for which the allowance was made, was for past services, and that the ^greater part of the claim allowed was for services other than were necessary in the preparation and filing of the bill. Heufeld testified that he had received $75 by order of the court, and that appellee herself had paid him $25, out of which he paid the costs, presumably $10, on filing the bill, and the sheriff’s fee for service' of summons; and one of his own witnesses, Mr. Bynam, a competent attorney, testified that preparing the bill and commencing suit, was worth $50. There has been no final decree of divorce against appellant. In such case, the general rule is that there can be no allowance on account of the complainant’s solicitor’s fees for past services. Anderson v. Steger, 173 Ill. 119-20.
The only exception to the rule is thus stated by the court:
“ From the necessities of the case, the solicitor may prepare a bill and render such services as may be necessary to present her application to the court, and until there shall be a session of the court, when her application can be made for an allowance, but no further.” Ib. 120.
While we do not in the least question the good faith of the solicitors who filed a brief for appellee, the motion to strike the brief from the files, purporting to be for appellee, must be sustained. An attorney or solicitor has not, merely by virtue of his employment as such, power to employ for his client another attorney or solicitor, much less has a solicitor who has been discharged by his client, such power.
We regard appellee’s affidavit in support of the motion to strike the brief from the files, as a virtual confession of' errors, but prefer to rest our decision on the other grounds stated.
The brief and argument purporting to be for appellee will be stricken from the files, and the decree will be reversed.
