Appeal from the Circuit Court of Cook County; the Hon. ROBERT
L. HUNTER, Judge, presiding. Reversed in part and remanded with
MR. JUSTICE MURPHY DELIVERED THE OPINION OF THE COURT.
Petitioners (attorneys) represented defendant's wife in a separate maintenance action, and she died during the pendency of the action. Seeking to recover attorneys' fees for their services rendered to her and reimbursement for expenses incurred on her behalf, petitioners filed a petition in the separate maintenance action. Also filed was an independent action at law against defendant, based on the theory that the legal services were "necessaries" of the wife and recoverable from the husband. The two actions were consolidated for hearing, and the trial court dismissed both.
On appeal the issues presented for review are: (1) whether a court in which a separate maintenance action was pending may, on a petition filed by a wife's attorneys prior to the entry of a final decree but subsequent to the wife's death, order a husband to pay additional attorneys' fees and expenses to the wife's attorneys; and (2) whether attorneys' fees and expenses may be recovered in an independent action at law from a husband, by a wife's attorneys, for legal services rendered to and expenses incurred on behalf of a wife in a separate maintenance action.
On March 14, 1966, Carol M. Spiro filed a complaint for separate maintenance in the Circuit Court of Cook County, Illinois. On July 29, 1966, the defendant husband, Earl M. Spiro, was ordered to "pay to Raymond, Mayer, Jenner & Block, attorneys for plaintiff, the sum of $5,000 as and for temporary attorneys' fees and suit money." On March 30, 1967, and prior to the entry of a final decree, Carol Spiro died. Petitioners filed a claim against her estate seeking to recover $12,000 for legal services. This claim was allowed, but due to the fact that Mrs. Spiro died insolvent, the claim was not paid.
On October 13, 1967, petitioners filed a petition in the separate maintenance action for an order requiring the defendant husband to pay them reasonable attorneys' fees for services performed and disbursements made on behalf of Mrs. Spiro in prosecuting the separate maintenance action as well as to discharge the wife's obligation to an investigating organization. The petition alleged that various members of the firm of Raymond, Mayer, Jenner & Block expended a total of 377 hours in performing legal services for the wife.
On December 12, 1967, petitioners filed a separate complaint at law against defendant, which described the legal services performed in connection with the separate maintenance action and alleged that said services constituted "necessaries" furnished to defendant's then wife. It was alleged that the reasonable value of the legal services performed for Carol M. Spiro was not less than $17,000, of which defendant has paid $5,000, leaving a balance of approximately $12,000.
On December 18, 1968, the trial court found in a "Memorandum Opinion": (1) that the action for separate maintenance abated when plaintiff, Carol M. Spiro, died, and the trial court was without jurisdiction to order additional attorneys' fees and expenses; and (2) that the complaint seeking a judgment for compensation for services rendered and expenses advanced for defendant's wife should be dismissed because they were not "necessaries" and the defendant was not obligated to pay them. On December 30, 1968, the court entered an order which dismissed both the petition and the complaint. This is the order from which petitioners appeal.
After examining the record and the authorities cited by both parties on the issues, we have concluded that the determinative issue is whether the original action for separate maintenance so abated on Carol Spiro's death that the trial court was without jurisdiction to order defendant to pay additional attorneys' fees and expenses for legal services rendered to her prior to her death.
On this issue petitioners contend that Mrs. Spiro brought the suit for separate maintenance in good faith and on probable cause after her husband had abandoned her, and that petitioners "rendered substantial legal services on her behalf, and this court should find that the death of the wife did not deprive the trial court of power to award attorneys' fees."
Petitioners' authorities include Fox v. Coyne, 25 Ill. App.2d 352, 166 N.E.2d 474 (1960), where the husband was granted a divorce. There the Illinois Supreme Court had affirmed a portion of a divorce decree of the Circuit Court and reversed the portion of the decree denying alimony and attorneys' fees for the wife (9 Ill.2d 509, 138 N.E.2d 547 (1956)). The case was remanded with directions to enter an award for alimony and to order the husband to pay reasonable fees to the wife's attorneys. Upon the remand, before the trial court entered an order on the matter of attorneys' fees, the wife died. The wife's attorneys then filed a petition for fees, and the trial court entered an order which directed the husband to pay the attorneys for his wife for services rendered in the trial of the cause. On appeal the Appellate Court stated (p 360), "The proceeding did not abate upon her death," and affirmed the order.
Petitioners' citations also include Gunther v. Gunther (Tex Civ App), 301 S.W.2d 207, 208-9 (1957):
"`In accordance with the rule that the death of either party abates proceedings as regards counsel fees, . . . upon the death of the husband it has been held that the court thereafter has no authority to award counsel fees, and that where the wife was plaintiff a refusal to make an allowance for fees of her counsel is proper. Under particular circumstances, however, it has been held that there may be an allowance for counsel fees after the death of the husband. It has also been held that as regards counsel fees which have been earned at the time of the wife's death the amount of allowance may be ascertained and fixed after such death.' 27 CJS, Divorce, § 221, p 917. . . . [T]he emphasized part of this quotation from CJS has been followed by courts of various States; in other words, that death of the wife does not take from the divorce court its power to award attorney's fees which have been earned. . . ."
On this point defendant asserts, "The rule that the death of a party in a separate maintenance case before final decree automatically abates the action and deprives the court of jurisdiction over the parties and subject matter was clearly enunciated by the Illinois Supreme Court in Bushnell v. Cooper, 289 Ill. 260 (1919)." In that case the Supreme Court affirmed a divorce decree which had been entered after the wife's death and which required the husband to pay the deceased wife's attorneys' fees. There the court stated (pp 264-65):
"The questions presented are, whether or not the court had jurisdiction to enter a decree in the original action after the death of one of the parties, and the method ...