Appeal from the Circuit Court of Kane county; the Hon. ROY J.
SOLFISBURG, JR., Judge, presiding. Judgment order affirmed.
JUSTICE DOVE DELIVERED THE OPINION OF THE COURT.
On February 9, 1951, Orville P. Fox filed, in the Circuit Court of Kane County his complaint against his wife, Mary V. Fox for divorce on the grounds of cruelty and habitual drunkenness. The defendant filed an answer denying the charges and also filed a counterclaim. By her amended counterclaim Mrs. Fox charged her husband with cruelty and sought a divorce, and requested alimony, the appointment of a receiver for certain described property in Aurora, an accounting from her husband and an order declaring that she was the owner of a portion of her husband's property. A hearing, without a jury, resulted in a decree granting the plaintiff a divorce and dismissing the counterclaim of Mrs. Fox.
Upon appeal the Supreme Court affirmed the decree of the Circuit Court in all respects except "wherein it denied an award of alimony for the support of the defendant, including the payment of her medical bills and fees for her attorney." The cause was remanded to the trial court with directions to enter an award of alimony to the defendant in such amount as, from the circumstances of the parties and the nature of the case, may be reasonable and just, and to provide therein for the payment of her medical bills and to order the plaintiff to pay a reasonable sum, as fees, to defendant's attorney. (Fox v. Fox, 9 Ill.2d 509.)
On December 18, 1956, the mandate of the Supreme Court was filed in the trial court and notice given to counsel for plaintiff that defendant would appear on February 21, 1957, and request an order for alimony, attorney fees, medical bills and temporary support in accordance with the mandate of the Supreme Court. Thereafter on March 22, 1957, an order was entered by the trial court directing Orville P. Fox to pay Mary V. Fox, as temporary support $100 per week commencing on Friday, March 22, 1957, and weekly thereafter until the further order of the court. By this order the hearing of all other matters was deferred until April 25, 1957. Mrs. Fox died on April 8, 1957.
On May 24, 1957, Kenneth C. Sedlek, Charles M. Pallardy and C.A. Caplow filed their verified petition reciting that Messrs. Sedlek and Pallardy were attorneys and that they represented Mrs. Fox in this proceeding from March 18, 1955, until the time of her death on April 8, 1957; that they rendered legal services to her, conducted an investigation for evidence in her behalf, had numerous conferences with her and interviewed numerous witnesses in her behalf, appeared in court, prepared all pleadings on her behalf, expended 289 hours of time in such research, investigation and attending the trial of the cause for nine days. An itemized statement of the services rendered and charges therefor was attached to the petition.
This petition further alleged that after the rendition of the decree in the trial court they, Messrs. Sedlek and Pallardy retained petitioner, Caplow, to prosecute the appeal to the Supreme Court; that Caplow did so and expended 387 3/4 hours from December 21, 1955, to and including March 21, 1957, in conferences, research and in the preparation of the abstract of record, brief and argument for Mrs. Fox. Annexed to the petition and made a part thereof was an itemized statement of these services and the charge made therefor.
The court had granted leave to file this petition and the death of Mary V. Fox had been suggested. The same day the petition was filed an order was entered substituting Mike Coyne, administrator of the estate of Mary V. Fox, Deceased, as party defendant in lieu of Mary V. Fox and the title of the cause was so amended. The petition prayed that the plaintiff be directed to pay to petitioners the costs and expenses incurred in the prosecution of the appeal together with attorney fees and other relief in accordance with the mandate of the Supreme Court.
At the conclusion of the hearing the court entered an order finding, (a) that no alimony should be awarded the estate of Mary V. Fox from November 10, 1955, the date the original decree was rendered, until March 22, 1957, the date when the weekly payments of $100 began under the order entered that day, (b) that Mary V. Fox incurred a medical bill to Dr. Carl Weiner of $340, a hospital bill to Franklin Boulevard Community Hospital of $509.75, another medical bill to Dr. Joseph S. Abbots amounting to $550 and a bill to Ravenswood Hospital of $581.68; that these doctor and hospital bills aggregate $1981.43, (c) that Kenneth Sedlek and Charles M. Pallardy rendered legal services to Mary V. Fox in the trial of this cause for which they are entitled to be compensated and that a fair and reasonable fee for their services is $7224, (d) that Messrs. Sedlek, Pallardy, Caplow and Kelley, rendered services of value to Mary V. Fox in the appeal of this cause to the Supreme Court of the State of Illinois but are not entitled to any compensation therefor under the mandate of the Supreme Court.
The judgment order of the trial court followed these findings and directed Orville P. Fox to pay the administrator of the Estate of Mary V. Fox within 30 days said sum of $1981.43 and further directed him to pay to Messrs. Sedlek and Pallardy within 30 days said sum of $7224 for attorney fees rendered in the Circuit Court of Kane County in the trial of this cause. To reverse this judgment order Orville P. Fox appeals and the administrator, Mike Coyne, and Messrs. Sedlek and Pallardy filed their notice of cross-appeal.
It is contended by counsel for appellant, (1) that the death of Mary V. Fox abated all further proceedings and deprived the trial court of any power to award alimony, to direct payment of her medical bills or attorney fees, (2) that the mandate of the Supreme Court did not require the trial court to award attorney fees to Messrs. Sedlek and Pallardy and (3) that the trial court erred in granting Mrs. Fox's application for a change of venue. Counsel argue that although the mandate of the Supreme Court directed the trial court to enter an order providing for the payment of the medical bills of Mrs. Fox and award her alimony and attorney fees, such alimony and attorney fees are incidental to the divorce proceeding and her death having occurred after the mandate was issued, the entire proceeding thereby abated.
In support of this contention counsel cite, among other cases, Bushnell v. Cooper, 289 Ill. 260. That case was a bill of review by the husband which sought to vacate a decree granting his wife a divorce and awarding her alimony, attorney fees and costs. It appeared in that case that the wife died about two hours before the decree was entered. In the course of its opinion the court (p. 264) said: "Marriage is a personal relation or status created under sanction of law and an action for a divorce is a proceeding brought for the purpose of effecting a dissolution of that relation. The action is one of a personal nature. In the absence of a statute to the contrary the death of one of the parties to such action abates the action, for the reason that death has settled the question of separation beyond all controversy and deprived the court of jurisdiction, both over the persons of the parties to the action and of the subject matter of the action itself. For this reason the courts are almost unanimous in holding that the death of either party to a divorce proceeding before final decree, abates the action." (Citations omitted.)
In the instant case the decree of divorce was entered on November 10, 1955. That decree insofar as it awarded Orville P. Fox a divorce was affirmed on November 26, 1956, and the mandate of the Supreme Court to that effect was filed in the trial court on December 18, 1956. The death of Mrs. Fox did not occur until April 8, 1957. What the Supreme Court held in the Bushnell case, supra, was that a proceeding for divorce abated if the death of a party occurs before final decree. In the instant case the Supreme Court determined that the trial court erred only in omitting to award Mrs. Fox alimony, medical bills and attorney fees. Its mandate directed the trial court to determine those amounts and remanded the case solely for that purpose.
In Dinet v. Eigenmann, 80 Ill. 274, it appeared that on January 28, 1870, Elizabeth Dinet filed her bill for divorce against her husband who answered and filed a cross-bill. Following a jury trial, a decree was rendered on May 29, 1872, in accordance with the verdict, granting plaintiff a divorce. On August 7, 1872, an order was entered directing the defendant to pay plaintiff $10,000 on or before July 1, 1873, and in the event such sum was not paid by that time, such unpaid portion should bear interest at the rate of 10% per annum. The order also directed the defendant to pay his wife, or to the clerk of the court for her use, the further sum of $2,000 per year, in ...