29 Mont. 478 | Mont. | 1904
prepared the opinion for the court.
On January 28, 1899, plaintiff brought an action against defendant for a divorce. The trial was had in August, 1901, and resulted in a decree in favor of the plaintiff.
Pending the action, and upon application filed by the defendant on the 28th day of February, 1899, the court ordered the plaintiff to pay the defendant certain alimony and expenses of the suit and $600 for her attorneys “as a retainer. ” The order further provided: “And the matter of requiring the plaintiff to pay additional sums to the defendant for counsel fees during the pendency of the action is reserved for the further action and order of the court herein. And it is further ordered that the defendant shall have leave to hereafter apply to the court for an order against the plaintiff requiring him to pay an additional sum or sums of money to the defendant for her support and to defray the expenses of defending said action and prosecuting a cross-bill therein, and for attorneys’ fees. And the court hereby reserves unto itself the right at any future
It will be noticed: that attorney’s fees were allowed by this order for three purposes, viz.: (1) For past services in conducting the trial of the case; (2) for services to be rendered in preparing and presenting the motion for a new trial; and (3) for services to be rendered in the preparation and presentation of an appeal from, the judgment.
It seems necessary to a final,decision of this appeal that the court first decide under what circumstances and for what purpose a district court might make an order allowing costs, expenses and attorney’s fees after the entry of final judgment.
Section 191 of the Civil Code provides, among other things: “While an action for divorce is pending the court or judge may, in its or his discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.” This is the only statutory authority giving power to a court to grant-alimony and expenses to a wife.
Section 1895 of the Code of Civil Procedure provides: “An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is. sooner satisfied.”
Section 1130 of the Code of Civil Procedure provides that: “Whenever an appeal is perfected, as provided in the preceding sections of this chapter, it stays all further proceedings in the court below upon the judgment or order appealed from, or
All the sections above quoted are referred to in the opinion of this court on an original application made by defendant to this court to compel plaintiff to pay attorney’s fees, on the appeal, costs for preparing transcript and printing brief in the supreme courts and maintenance pending the appeal. (Bordeaux v. Bordeaux, 26 Mont. 533, 69 Pac. 103.) This court said: “Whether the district court or judge has power, pending appeal, to' require the husband to pay’ to the wife money necessary to. prosecute or defend against an appeal in a divorce case is a question reserved as unnecessary to be decided.” The court then decided that in the exercise of appellate jurisdiction it had no such power. Mr. Justice Pigott discusses the power of the courts of Montana in divorce cases, and in this discussion uses the following language when speaking of the appellate jurisdiction of this court in such cases: “The action — the entire case — is not transferred by appeal. Questions of law only are presented on appeal, even where the relief sought is equitable in character. The action itself is still pending in the lower court. On an appeal only questions of law are tried; neither the mere weight of evidence in substantial conflict nor the credibility of the witnesses is re-examined, nor is evidence adduced. Except in so far as affected by the appeal, the cause remains, in the district court, the primary forum.”
We are of the opinion that under the above-quoted provisions of the statute the district court had jurisdiction and power, notwithstanding the judgment, at any time prior to the determination of the action on appeal from the judgment, or prior to the expiration of the time of appeal, to require the husband to pay any money necessary to enable the wife to. support herself and to further prosecute or defend the action. (BE parte Winter, 70 Cal. 291, 11 Pac. 630; Larkin v. Larkin, 71 Cal. 330, 12 Pac. 227; Bohnert v. Bohnert, 91 Cal. 428, 27 Pac. 732; McCarthy v. McCarthy, 137 N. Y. 500, 33 N. E. 550; McBride
It is well settled that the court below has no power, after trial and judgment in the case, to compel the husband to provide the wife with money to pay for past services of attorneys, or for expenses incurred in the trial of the case; that the necessity mentioned in the statute refers to prosecuting and defending the action in the future. Therefore, after the case has been tried, and the judgment has been entered, no such necessity can exist. (Lacey v. Lacey, 108 Cal. 45, 40 Pac. 1056; Loveren v. Loveren, 100 Cal. 493, 35 Pac. 87; McCarthy v. McCarthy, 137 N. Y. 500, 33 N. E. 550; Newman v. Newman, 69 Ill. 167.)
There is one apparent exception to the principle announced by the last decisions cited, and that is that the district court may allow the wife money with which to pay such past expenses, when it becomes necessary to make such payment in order to enable her to1 continue her prosecution or defense. (McCarthy v. McCarthy, 137 N. Y. 500, 33 N. E. 550; Loveren v. Loveren, 100 Cal. 493, 35 Pac. 87; Beadleston v. Bea dleston, 103 N. Y. 402, 8 N. E. 735.) But, in order to apply the doctrine announced in the the cases last cited, there must always be a showing of this necessity. The only attempted showing, as disclosed by the record, is that upon the applications made to the court pending the trial for allowance of attorney’s fees the court refused to allow them, and reserved the right to allow them after the trial. We do not believe that this was a showing of a necessity for their allowance, under the above authorities, but only an excuse for not insisting upon their allowance before final judgment was entered. The court below evidently refused to make the allowance, further than the retainer above mentioned, on the theory that he was unable to tell what the reasonable value of such fees would be until after the trial of the case, and that he would reserve the right
Under the above authorities we are clearly of the opinion that the defendant, by her showing, did not bring her application within the exception recognized, and that the court below therefore erred- in allowing attorney’s, fees, for past services, after the judgment had. been entered.
There is. no doubt that the court below had full authority and power to- allow reasonable attorney’s fees for services to be rendered in the preparation and presentation of a motion for a new trial, the proof disclosing that notice of intention toi move for a- new trial had been given. The mere fact that judgment passed against defendant upon a hearing of the case did not prevent her from making the motion for a new trial. Nor did it prevent the court from' allowing her the costs, expenses and attorney’s fees necessary to the making of said motion, if a proper showing had been made to the court for that purpose. We do not deem it necessary to state what that showing must be, but it is sufficient for the purposes of this opinion to say that the showing made before the court in that regard was, in our judgment, not sufficient.
Neither is there any doubt under the above authorities that the court below, after an appeal had been taken, had full jurisdiction to make an order compelling the plaintiff to pay to the defendant the necessary costs and expenses incident to the preparation and presentation of such appieal; but the court below had no power to make such order until after the appeal w'as. taken. A motion for a new trial was pending. The court could not tell in advance whether this motion would be overruled or granted. If granted, there would be no occasion for an appeal. The court therefore was in error in making the order complained of, because included in that order was an aJlow|ance for attorney’s fees for services to be performed in the preparation and presentation of an appeal.
The only further allowance complained of is that of $325 for obtaining a copy of the testimony given at the trial for use
We are therefore of the opinion that the order appealed from should be reversed, and remanded to the lower court, with permission to- the defendant to make such further showing as she may be advised, not in conflict with this opinion.
Por the reasons stated in the foregoing opinion, the order appealed from is reversed and remanded, and the lower court is hereby directed to permit the defendant to make such further showing as she may: be advised is proper, not in conflict with the foregoing opinion.