No. 2294 | La. Ct. App. | Jun 6, 1925
Defendants are husband and wife. . The wife Mrs. Christiana Peterson Byrd, employed plaintiffs to bring suit for divorce against her husband, Lonnie Guy Byrd, and, on September 6, 1924, the suit was filed and a Notary appointed to make an inventory of all the community property situated in the parish of Rapides-, where the defendants are domiciled. -The com-, munity also owned property in ■ the state of' Tennessee, and an inventory. and appraisement thereof was made in -Tipton county. An' inventory and appraisement of the property situated in Rapides ■ parish was not made, but the Notary,: having selected appraisers and having gone to the premises to make the inventory, rendered a bill for his services to the plaintiffs as attorneys for Mrs. Byrd.
On September 8, 1924, just two days after the suit was filed, Mrs. Byrd notified plaintiffs that she wished the suit against her husband withdrawn, and, acting under her instructions, plaintiffs dismissed the suit.
It is alleged that Mr. and Mrs. Byrd are now living together as husband and wife and are “maintaining the community of acquets and gains”.
Mrs. Byrd failed to pay plaintiffs, her attorneys, any fee for their services, and failed to pay the expenses which they incurred in connection with the suit.
Her attorneys bring this suit against the husband and the wife for their fee and expenses, and ask for judgment against them individually and in solido.
Defendants tendered an exception of no cause and no right ‘of action, which was sustained, and plaintiffs have appealed.
OPINION.
Counsel for plaintiffs concedes that the exception of no cause of action is good insofar as the wife is concerned, but he insists that the husband should pay the fee and expenses if not as matter of law then as a matter of equity.
The question submitted to us for decision we think has been settled, adversely to plaintiffs’ contention. We think the jurisprudence of this state is settled that the husband, as head and master.-of the
The cases of Tucker vs. Carlin, 14 La. Ann. 734" court="La." date_filed="1859-08-15" href="https://app.midpage.ai/document/tucker-v-carlin-7186254?utm_source=webapp" opinion_id="7186254">14 La. Ann. 734; and Trowbridge vs. Carlin, 12 La. Ann. 882" court="La." date_filed="1857-08-15" href="https://app.midpage.ai/document/trowbridge-v-carlin-7185386?utm_source=webapp" opinion_id="7185386">12 La. Ann. 882, are similar to the instant case, and in those cases it was held that counsel could not recover their fees from the husband and community.
In the case of Benedict vs. Holmes, 104 La. 528, 29 South. 256, all the cases on this subject were reviewed and the court held that counsel who had represented the wife were entitled to recover their fees from the husband as head and master of the community, but in that case the wife was successful in her attack, and the court said:
“In our opinion, the fees of the attorney of the wife who has successfully prosecuted against her husband a suit for separation from bed and board, and a separation of property has a right of action against the latter as head and master of the community for the payment of his fee, as it constitutes a charge against the community, and is payable from its assets.”
This holding is based upon the theory that if the husband’s conduct is such as to justify the dissolution of the community on the petition of the wife, the community should bear the cost’ and attorney’s fees incident to its dissolution. The wife has the right at all times to go into court and demand that the community be dissolved and that she be granted a divorce. If she is unsuccessful in her suit, she must pay the cost. If, however, she is successful and the community is dissolved, the defendant husband is taxed with the cost. In order for the wife' to succeed in her suit to dissolve the community she must show that it is to her interest at least that it should be dissolved, in which event we can see no reason why the community should not pay the cost of the suit. On the contrary, if she fails in her attack, it is because the community should not be dissolved, in which event we can see no reason why the community should hear the cost of her unsuccessful attack.
It is the husband’s privilege to superintend and manage the community assets and it is likewise his duty to protect them. If the husband’s conduct toward his wife and His management of the community affairs are such as to warrant a continuation of marital relation between him and his wife and a continuation of the community, he’ as head and master of the community should not be taxed with the cost and attorney’s fees of the wife who makes an unsuccessful attempt to destroy those marital relations.
In the case at bar, the wife became reconciled and withdrew her suit. ' It was not carried to a successful conclusion. We are not informed as to why the wife withdrew her suit, except that it is stated that she and her husband became reconciled. In such a case the husband should not be required to pay the fees of his wife’s attorneys.
In order to set out a cause of action in a case of this kind it is necessary, in our opinion, for the petition to contain allegation that the suit terminated successfully in favor of the wife. There is no such allegation in the plaintiffs’ petition.
See:
Purser & Magruder vs. Baientolila, 152 La. 766, 94 So. 366" court="La." date_filed="1922-10-30" href="https://app.midpage.ai/document/purser--magruder-v-baientolila-7172809?utm_source=webapp" opinion_id="7172809">94 South. 366.
For the reasons assigned, it is ordered, adjudged and decreed that the judgment of the lower court sustaining the exception of no cause of action and dismissing plaintiffs’ suit is affirmed.