Appeal from the Circuit Court of Cook County; the Hon. A.F.
WELLS, Judge, presiding. Case No. 52,475 reversed and remanded
with directions. Case No. 52,567 reversed.
MR. JUSTICE MORAN DELIVERED THE OPINION OF THE COURT.
Rehearing denied December 12, 1968.
This appeal and cross-appeal arise from a divorce proceeding between Linda L. Hokin, plaintiff, and John J. Hokin, defendant, and were consolidated for hearing by this court.
On March 15, 1966, plaintiff, through her attorneys, Joseph H. and Norman Becker (attorney-appellees), filed a complaint for divorce charging cruelty on the part of the defendant. On March 18, 1966, plaintiff's attorneys moved for temporary alimony, custody and attorneys' fees. This motion was continued eleven times until June 24, 1966. In the meantime, while the motion was pending, the defendant moved to strike the complaint and an answer thereto was filed by the plaintiff. The trial court denied the motion to strike on June 27, 1966. On the same day, the plaintiff filed an amended complaint based upon the same grounds but changing one of the dates of the alleged cruelty and joining additional parties as defendants. McDonnell and McDonnell (attorney-appellees), entered their appearance as additional counsel for the plaintiff. Thereafter, defendant filed a motion to strike the amended complaint which was answered by the plaintiff On November 9, 1966, after notice to all of the attorneys of record, the plaintiff moved the court to substitute Harold Friedman and Melvin Weinstein as her attorneys in place of attorney-appellees. On the same date the following order was entered:
"It is Ordered, Adjudged & Decreed:
"1) That leave be and is granted Harold E. Friedman and Melvin A. Weinstein to substitute their appearance as attorneys for Linda L. Hokin, plaintiff in lieu of McDonnell & McDonnell Joseph H. & Norman Becker and the Clerk of this Court (is) to strike the appearance of McDonnell & McDonnell & Joseph H. & Norman Becker as attorneys for plaintiff Linda L. Hokin.
"2) That McDonnell & McDonnell and Joseph H. & Norman Becker's rights if any to attorney fees against the defendant is reserved to the hearing on said cause, that upon the hearing of said cause the amount of attorney's fees to be paid to McDonnell & McDonnell & Joseph H. & Norman Becker if any by defendant and the amount of attorney fees to be paid to Harold E. Friedman and Melvin A. Weinstein if any by defendant shall be determined by the court."
The record next discloses that on February 2, 1967, the defendant filed his answer to the amended complaint and on March 13, 1967, the plaintiff filed a motion to dismiss her complaint, after notice to all attorneys, (including the attorney-appellees), claiming that she desired to effect a reconciliation. While this motion was pending the defendant moved to file a counterclaim for divorce charging desertion (which was to have commenced on March 7, 1966), and the same was filed on March 28, 1967. The next day, attorney-appellees procured the following order:
"Upon motion of the law firm of McDONNELL & McDONNELL and attorneys JOSEPH H. BECKER and NORMAN BECKER, and pursuant to the order of this Court entered on November 9, 1966:
"IT IS HEREBY ORDERED that the question of the amount of the attorney's fees to be paid by the defendant to the law firm of McDONNELL and McDONNELL and attorneys JOSEPH H. BECKER and NORMAN BECKER for services rendered by said attorneys for and in behalf of the plaintiff in this cause, be and the same is hereby set for hearing before this Court on the 8th day of May, 1967, at the hour of 9:30 o'clock A.M., without further notice."
On April 3, 1967, the firm of Lissner, Rothenberg, Reif and Barth were granted leave to file their appearance as additional counsel for the plaintiff. Thereafter the plaintiff filed her answer to the defendant's counterclaim in which she set forth two affirmative defenses, one being condonation and the other was as follows:
". . . 1) That the Counter Defendant is informed and believes that the Counter Plaintiff has committed adultery with one Marcia McNaughton on one or more of the following occasions: March 2, 1967; March 3, 1967; March 4, 1967; March 13, 1967; March 14, 1967; March 15, 1967; March 16, 1967; March 17, 1967; March 18, 1967; March 19, 1967 at one or more of the following places, 55 Green Bay Road, Highland Park, Illinois; 1350 N. Lake Shore Drive, Chicago, Illinois; Castaway Hotel, Miami Beach, Florida and at other times and places. . . ."
to which the defendant filed a reply.
On May 8, 1967, the date of trial, the court allowed the plaintiff's motion to dismiss her amended complaint and also, prior to a hearing on the counterclaim, entered the following order:
"Upon motion of Attorneys JOSEPH H. BECKER AND NORMAN BECKER and the law firm of McDONNELL & McDONNELL, and pursuant to order of this Court entered on November 9, 1966, and further pursuant to order of this Court entered on March 28, 1967, setting this cause for trial on the 8th day of May, 1967, at the hour of 9:30 o'clock a.m.; and it appearing that the claim of said attorneys is predicated and based upon legal services rendered by them for and in behalf of the plaintiff in this cause, the claim of said attorneys being as against the ...