Mr. Justice Niemeyer
delivered the opinion of the court.
Plaintiff appeals from a second decree dismissing his complaint for annulment of his marriage to defendant and from a subsequent order directing the payment of $150 for attorneys’ fees and expense money in defending the first appeal. These appeals have been consolidated.
The complaint charged that the marriage had been induced by duress and the fraudulent representation that plaintiff was the father of the child with which defendant was pregnant. Defendant answered, denying the charges of duress and fraud, and affirming that plaintiff was the father of her child. She also filed a counterclaim for separate maintenance, or, in the alternative for divorce on the ground that from and after the marriage ceremony plaintiff had without cause refused to live and cohabit with her. After a trial the court entered a decree, January 9, 1946, finding that plaintiff was the father of defendant’s child and dismissing the complaint and counterclaim for want of equity. No appeal was taken from that decree. Within 30 days plaintiff filed a petition which, as amended, recites that the finding in the decree as to the paternity of the child was based on testimony on behalf of defendant that plaintiff was in the City of Chicago in the period from June 13 to and including June 20, 1943. That during all that time plaintiff was in the State of Mississippi as a member of the Army of the United States, and that certain witnesses named in the petition would so testify; that, as the court on the first hearing of evidence had ruled that the paternity of the child was immaterial, no finding on that question should have been made. No other objection to the decree was raised. The petition ended with the following prayer: “Wherefore, your petitioner prays that the decree heretofore rendered and entered in this cause, on January 9, 1946, may be vacated and set aside in order that the newly discovered evidence hereinbefore set forth may be introduced in this cause; . . . or, in the alternative, that a new decree may be entered in this cause expressly refraining from adjudicating any question as to the paternity of the defendant’s child.”
April 3,1946, the court vacated the first decree and entered a second decree, identical with the first except that the paragraph containing the finding that plaintiff was the father of defendant’s child was eliminated, and in lieu thereof there was inserted in the second decree a paragraph stating the contention of the respective parties as to the paternity of the child, and concluding, “. . . this court does not make any finding with respect to the paternity of said child.” This decree gave the plaintiff exactly the relief and all the relief he asked in the alternative prayer of his petition. Under such circumstances he cannot appeal from it, and his appeal must be dismissed. McDonald v. Shimeall, 282 Ill. 42; Henry v. Metz, 382 Ill. 297; City of Chicago v. Sayer, 330 Ill. App. 181 ; McNulty v. Hotel Sherman Co., 280 Ill. App. 325.
The second appeal attacks the entry of an order by the trial court, after the appeal from the decree dismissing the complaint had been perfected, requiring the plaintiff to provide defendant with money to meet the expenses of the appeal. The only Illinois case specifically dealing with this question is Smith v. Saum, 324 Ill. App. 299, where, as further examination of the question shows, this court reached the right conclusion but erred in the reasons assigned.
We have no statute on annulment of marriages and no statute relating to the allowance of support money, solicitors’ fees and expense money in marital proceedings, except in respect to divorce and separate maintenance. Whatever jurisdiction the court had to enter the order before us must be found in the general powers of the court. The answer to the question being considered is found in the early practice in Illinois in divorce and separate maintenance suits. In each proceeding the reasons supporting the allowance and the power of the court to direct it are, in the absence of a statute, the same. Within the statutory jurisdiction of divorce, courts of equity exercise their general powers. Smith v. Smith, 334 Ill. 370; Smith v. Johnson, 321 Ill. 134. Prior to 1874 the statute on divorce provided for alimony on the entry of a decree, but was silent as to alimony pendente lite. In Petrie v. People, 40 Ill. 334, a contempt proceeding, defendant insisted that the trial court erred “in allowing alimony to enable complainant to employ counsel and otherwise prepare for the prosecution of her suit,” and questioned the power of the court to make the order “upon the ground that the statute regulating proceedings in divorce contains no express authority for the purpose, the statute only, in terms, authorizing the court to allow permanent alimony by the final decree.” In affirming the trial court the Supreme Court said (p. 341): “Without citing further authorities, we may safely say, that the general American doctrine is, that the wife may have alimony pendente lite, as well as money to defray the expenses of the suit, even in the absence of statutory provision to that effect, upon the principle that alimony is an incident to the divorce, and that the jurisdiction of the latter necessarily includes the power to enforce such a right, as a legal attendant upon the marital relation, under the circumstances under which the parties litigant are placed. Bishop on Marriages and Divorce, sec. 574. Moreover it will not be questioned that this right existed as a part of the common law jurisdiction, and we have expressly adopted the common law as a part of our jurisprudence. It is true that this jurisdiction was exercised in Great Britain in the ecclesiastical courts, but is none the less, for that reason, a common law jurisdiction, in harmony with our institutions, and essentially necessary to the attainment of justice.” And (p. 343): “We are fully satisfied that the weight of authority as well as reason and justice all unite in support of the rule, that the Court of Chancery in this State, having power to grant divorces, has also the incidental power to allow temporary alimony pendente lite, and therefore, the Superior Court did not exceed its jurisdiction in granting the order complained of and assigned for error. ’ ’ To the same effect are Newman v. Newman, 69 Ill. 167; Trotter v. Trotter, 77 Ill. 510; Dow v. Eyster, 79 Ill. 254; Johnson v. Johnson, 20 Ill. App. 495, suit for separate maintenance. That allowances for solicitors’ fees and suit money are in the nature of allowances for alimony and governed by the same rules, see Johnson v. Gerald, 216 Ala. 581; Allen v. Allen, 180 N. C. 465; Winslow v. Winslow, 133 Tenn. 663. The greater weight of authority supports the allowance of temporary alimony, including solicitors’ fees and suit money, in suits for annulment of marriages in the absence of statutory authorization. 35 Am. Jur., Marriage, sec. 70, and cases cited. Defendant’s right to the allowanee was not affected by the dismissal of her counterclaim for separate maintenance. Medlin v. Medlin, 175 N. C. 529. It may be added that the necessity for such allowance was created subsequent to the decree denying separate maintenance and by action of the plaintiff at a time when under the ruling of the court the defendant was, and still is, the wife of plaintiff.
Lastly, plaintiff contends that whatever power the trial court had to direct the payment of solicitors ’ fees and suit money was lost by the perfecting of the appeal, citing Cowdery v. Northern Trust Co., 321 Ill. App.
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Mr. Justice Niemeyer
delivered the opinion of the court.
Plaintiff appeals from a second decree dismissing his complaint for annulment of his marriage to defendant and from a subsequent order directing the payment of $150 for attorneys’ fees and expense money in defending the first appeal. These appeals have been consolidated.
The complaint charged that the marriage had been induced by duress and the fraudulent representation that plaintiff was the father of the child with which defendant was pregnant. Defendant answered, denying the charges of duress and fraud, and affirming that plaintiff was the father of her child. She also filed a counterclaim for separate maintenance, or, in the alternative for divorce on the ground that from and after the marriage ceremony plaintiff had without cause refused to live and cohabit with her. After a trial the court entered a decree, January 9, 1946, finding that plaintiff was the father of defendant’s child and dismissing the complaint and counterclaim for want of equity. No appeal was taken from that decree. Within 30 days plaintiff filed a petition which, as amended, recites that the finding in the decree as to the paternity of the child was based on testimony on behalf of defendant that plaintiff was in the City of Chicago in the period from June 13 to and including June 20, 1943. That during all that time plaintiff was in the State of Mississippi as a member of the Army of the United States, and that certain witnesses named in the petition would so testify; that, as the court on the first hearing of evidence had ruled that the paternity of the child was immaterial, no finding on that question should have been made. No other objection to the decree was raised. The petition ended with the following prayer: “Wherefore, your petitioner prays that the decree heretofore rendered and entered in this cause, on January 9, 1946, may be vacated and set aside in order that the newly discovered evidence hereinbefore set forth may be introduced in this cause; . . . or, in the alternative, that a new decree may be entered in this cause expressly refraining from adjudicating any question as to the paternity of the defendant’s child.”
April 3,1946, the court vacated the first decree and entered a second decree, identical with the first except that the paragraph containing the finding that plaintiff was the father of defendant’s child was eliminated, and in lieu thereof there was inserted in the second decree a paragraph stating the contention of the respective parties as to the paternity of the child, and concluding, “. . . this court does not make any finding with respect to the paternity of said child.” This decree gave the plaintiff exactly the relief and all the relief he asked in the alternative prayer of his petition. Under such circumstances he cannot appeal from it, and his appeal must be dismissed. McDonald v. Shimeall, 282 Ill. 42; Henry v. Metz, 382 Ill. 297; City of Chicago v. Sayer, 330 Ill. App. 181 ; McNulty v. Hotel Sherman Co., 280 Ill. App. 325.
The second appeal attacks the entry of an order by the trial court, after the appeal from the decree dismissing the complaint had been perfected, requiring the plaintiff to provide defendant with money to meet the expenses of the appeal. The only Illinois case specifically dealing with this question is Smith v. Saum, 324 Ill. App. 299, where, as further examination of the question shows, this court reached the right conclusion but erred in the reasons assigned.
We have no statute on annulment of marriages and no statute relating to the allowance of support money, solicitors’ fees and expense money in marital proceedings, except in respect to divorce and separate maintenance. Whatever jurisdiction the court had to enter the order before us must be found in the general powers of the court. The answer to the question being considered is found in the early practice in Illinois in divorce and separate maintenance suits. In each proceeding the reasons supporting the allowance and the power of the court to direct it are, in the absence of a statute, the same. Within the statutory jurisdiction of divorce, courts of equity exercise their general powers. Smith v. Smith, 334 Ill. 370; Smith v. Johnson, 321 Ill. 134. Prior to 1874 the statute on divorce provided for alimony on the entry of a decree, but was silent as to alimony pendente lite. In Petrie v. People, 40 Ill. 334, a contempt proceeding, defendant insisted that the trial court erred “in allowing alimony to enable complainant to employ counsel and otherwise prepare for the prosecution of her suit,” and questioned the power of the court to make the order “upon the ground that the statute regulating proceedings in divorce contains no express authority for the purpose, the statute only, in terms, authorizing the court to allow permanent alimony by the final decree.” In affirming the trial court the Supreme Court said (p. 341): “Without citing further authorities, we may safely say, that the general American doctrine is, that the wife may have alimony pendente lite, as well as money to defray the expenses of the suit, even in the absence of statutory provision to that effect, upon the principle that alimony is an incident to the divorce, and that the jurisdiction of the latter necessarily includes the power to enforce such a right, as a legal attendant upon the marital relation, under the circumstances under which the parties litigant are placed. Bishop on Marriages and Divorce, sec. 574. Moreover it will not be questioned that this right existed as a part of the common law jurisdiction, and we have expressly adopted the common law as a part of our jurisprudence. It is true that this jurisdiction was exercised in Great Britain in the ecclesiastical courts, but is none the less, for that reason, a common law jurisdiction, in harmony with our institutions, and essentially necessary to the attainment of justice.” And (p. 343): “We are fully satisfied that the weight of authority as well as reason and justice all unite in support of the rule, that the Court of Chancery in this State, having power to grant divorces, has also the incidental power to allow temporary alimony pendente lite, and therefore, the Superior Court did not exceed its jurisdiction in granting the order complained of and assigned for error. ’ ’ To the same effect are Newman v. Newman, 69 Ill. 167; Trotter v. Trotter, 77 Ill. 510; Dow v. Eyster, 79 Ill. 254; Johnson v. Johnson, 20 Ill. App. 495, suit for separate maintenance. That allowances for solicitors’ fees and suit money are in the nature of allowances for alimony and governed by the same rules, see Johnson v. Gerald, 216 Ala. 581; Allen v. Allen, 180 N. C. 465; Winslow v. Winslow, 133 Tenn. 663. The greater weight of authority supports the allowance of temporary alimony, including solicitors’ fees and suit money, in suits for annulment of marriages in the absence of statutory authorization. 35 Am. Jur., Marriage, sec. 70, and cases cited. Defendant’s right to the allowanee was not affected by the dismissal of her counterclaim for separate maintenance. Medlin v. Medlin, 175 N. C. 529. It may be added that the necessity for such allowance was created subsequent to the decree denying separate maintenance and by action of the plaintiff at a time when under the ruling of the court the defendant was, and still is, the wife of plaintiff.
Lastly, plaintiff contends that whatever power the trial court had to direct the payment of solicitors ’ fees and suit money was lost by the perfecting of the appeal, citing Cowdery v. Northern Trust Co., 321 Ill. App. 243 (opinion by the writer of this opinion), and Kohler v. Kohler, 326 Ill. App. 105. Neither of these cases was a divorce, separate maintenance or annulment of marriage proceeding. However, in each case Jenkins v. Jenkins, 91 Ill. 167, was cited. That case involved an order by the trial court for solicitors’ fees for the wife’s defense of the appeal taken by the husband from a decree of divorce in favor of the wife. In answering the husband’s contention that the trial court had no jurisdiction to entertain the motion and order solicitors’ fees after the cause had been removed to the Supreme Court, that court said: “. . . were it not for sec. 15, chap. 40, E. L. 1874, page 421, we would have no hesitation in holding that appellant’s position was well taken, — that after the appeal was consummated and the cause was removed to this court, the circuit court had no right to require appellant, by decree or otherwise, to pay attorney or solicitors’ fees; but the section of the statute referred to in plain and express terms confers the power upon the circuit court, and the law as enacted by the legislature must control. ’ ’ If the statement as to what the court would have held in the absence of a statute is not obiter dictum, it is inconsistent with A. R. Barnes & Co. v. Chicago Typographical Union, 232 Ill. 402, 410, 411. Diligent search has failed to reveal an authority holding that the statement of a court as to what its decision would be in a suppositions case, is a judicial determination of that case, to be followed when and if the case is before the court. The question presented in the Jenkins.case was the power of the court to enter the order under the statute. This did not require determination of the power of the court in the absence of the statute. It did not present for decision all questions relating to the power of a trial court to enter orders pending an appeal. The expression in the Jenkins case is not like those considered in Scovill Mfg. Co. v. Cassidy, 275 Ill. 462, 470, and the cases there cited. In the Scovill case plaintiffs in error insisted that certain statements in Swisher v. Deering, 204 Ill. 203, were dictum. The Swisher case was an action against a guarantor to collect the amount owing by his principal to plaintiff under a contract of agency. One of the points raised on appeal was the admissibility in evidence of a statement of account showing the balance due plaintiff from the principal. The Supreme Court held the statement to be admissible under the general rules of evidence, and also because of the special provisions of the contract making the written acknowledgment of the principal binding on the guarantor. In the Scovill case the plaintiff in error insisted that the statement of the Supreme Court in the Swisher case as to the admissibility of the statement of account under the general rules of evidence was mere dictum, because of the special provisions of the contract. The court, however, thought it was not dictum, and added: “. . . even if it was, it was the expression of opinion upon a point in a case deliberately passed upon by the court and should be held as judicial dictum rather than mere obiter.” A point in the Swisher case presented for decision was the admissibility óf a statement of account by a principal in an action against his- guarantor. On this point the Supreme Court specified two reasons for its decision, each applicable to the facts presented in the record. In the Jenhins ease the power of the trial court to enter the order questioned, in the absence of a statute, was not a point in the case, and the entry of such an order was not a fact presented by the record. The statement of the court as to what its ruling would have been had the order been entered in the absence of a statute, is pure obiter dictum. McAdams v. McAdams, 267 Ill. App. 124 ( opinion by this court); People v. Kennedy, 367 Ill. 236, 241; People v. Callopy, 358 Ill. 11, 19; Brush v. Commissioner of Internal Revenue, 300 U. S. 352, 373; Osaka Shosen Kaisha Line v. U. S., 300 U. S. 98; McLaren v. Fleischer, 256 U. S. 477, 482; Nichols v. St. Louis & S. F. R. Co., 227 Ala. 592; Hills v. Superior Court, 207 Cal. 666.
The general rule, universally recognized, is that a duly perfected appeal divests the trial court of further jurisdiction of the cause in which the appeal has been taken. This rule, however, is not without exceptions. As said in 3 Am. Jur., Appeal and Error, sec. 531, “An appeal of error proceeding divests the trial court of jurisdiction over matters necessarily involved in the review proceeding only. The court has jurisdiction to hear and determine questions arising in proceedings independent of, and collateral to, the proceeding wherein the judgment or order appealed from was rendered. It does not, for example, deprive the trial court of jurisdiction to entertain a motion for . . . alimony and counsel fees pendente lite pending an appeal from a divorce decree.” (Italics ours.) In Elliott on Appellate Procedure, sec. 545, the author says: “Matters independent of and distinct from the questions involved in the appeal are not taken from the jurisdiction of the trial court. Such matters as the appeal does not cover are purely collateral or supplemental, lying outside of the issues framed in the case, or arising subsequent to the delivery of the judgment from which the appeal is prosecuted. The general rule that a case leaves the jurisdiction of the trial court when an appeal is perfected is not impinged by holding that purely collateral or supplemental matters are left under the control of the trial court, notwithstanding the loss of jurisdiction over the case taken to the higher court.” (Italics ours.) This rule has been recognized in Illinois. In A. R. Barnes & Co. v. Chicago Typographical Union, supra, where the right of the trial court to punish certain defendants for violation of an injunction pending an appeal from the injunetional decree was questioned, the court said (410-411): “The Appellate Court reviews the record brought to it by the appeal, which includes nothing happening after the decree is entered, and the question whether the injunction was obeyed or disobeyed is not involved in the appeal. No reason is apparent to us why the superior court should be refused the right to maintain its authority as to a matter not affected in any way by the appeal and which is not dependent in any respect on the final outcome of the suit until the decree has been affirmed by the Appellate Court, since the question whether the decree was erroneous or not is in no way involved in maintaining the existing status.” (Italics ours.) The order for solicitor’s fees in the present case relates “to a matter not affected in any way by the appeal and which is not dependent in any respect on the final outcbme of the suit.” In the Jen-Jcins case, supra, the decree in favor of the wife was reversed on appeal, and it was expressly held that such reversal did not require reversal of the order for solicitors’ fees in unsuccessfully defending the appeal. To the same effect is Fashen v. Fashen (Tex. Civ. App.), 260 S. W. 698. Unlike the order in the present case, the orders in the Coivdery and Kohler cases,' cited by plaintiff, held to have been improperly entered pending appeals, would be affected by the result of the appeals and the propriety of each order was dependent on the final outcome of the suit.
Cases in other states upholding the right of trial courts to grant alimony and suit money pending an appeal in the absence of statutory provision authorizing the allowance, are White v. White, 106 Pa. Super. 85, 161 Atl. 464; Ex parte Lohmuller, 103 Tex. 474; Maxwell v. Maxwell, 67 W. Va. 119. In the latter ease the court says (124-125): “If, after an appeal of a divorce case, the wife seeks to be paid suit money or maintenance pending the appeal, she must apply therefor in the circuit court. Since the matter is of original and not appellate cognizance, it must he litigated where there is original jurisdiction for it, and where original evidence may be heard upon it. It is no part of the appeal. It is indeed a new case. Though the procedure is collateral to a case on appeal, yet it involves a matter that is independent of any question raised by the appeal. It embraces a showing that was not made in the court below, and which therefore could not be embraced in the appeal. That showing could not be made until the appeal was taken, for the showing itself is that of the pendency of the appeal and the necessity for suit money and maintenance which that appeal has caused. The making of this showing in the circuit court is not prevented by the appeal. That appeal affects only that which has been done by the circuit court. It removes the case to the appellate court for review of what the circuit court has already done. It does not deprive the circuit court of jurisdiction to make orders in the cause upon matters that are distinct from the questions involved in the appeal and especially those which are in aid of the appeal.” So, in this State, this court having only appellate jurisdiction (Goodrich v. Sprague, 376 Ill. 80, 85), the application must he made in the trial court. This has been the practice. Hunter v. Hunter, 100 Ill. 477. To hold otherwise would he to deprive the defendant of her remedy.
The appeal from the decree dismissing the complaint for want of equity is dismissed. The order allowing suit money pending the appeal is affirmed.
Appeal dismissed. Order affirmed.
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