4 Ind. App. 221 | Ind. Ct. App. | 1892
— America Courtney, by Works and Griffith, her attorneys, brought an action in the Switzerland Circuit Court against Andrew J. Courtney for divorce.
Pending the action, the plaintiff applied for a temporary allowance for her support, showing in her application that she had a good cause for divorce, and that she was entirely destitute of means of support pending the litigation. An order was entered requiring the defendant to pay her a fixed
The defendant appeared and filed a demurrer to the motion, which was overruled, and such further proceedings were had that the court entered an order in the cause requiring the defendant to pay said attorneys the sum of $55, and from this order the defendant appeals.
It is first insisted on behalf of appellant that the dismissal in vacation effectually disposed of the case, and that the court had no jurisdiction of it thereafter.
Section 334, E. S. 1881, provides that the plaintiff may dismiss his action in vacation by filing a writing with the clerk to that effect, and the clerk shall enter such dismissal in the order book, and the court shall enter judgment accordingly at the nest term.
It seems to have been the intention of the Legislature to
~We are referred to the case of St. John v. Hardwick, 17 Ind. 180, as establishing a different doctrine, but we do not so regard it. In that case the question came up between the parties, upon a plea in abatement filed in a subsequent suit, alleging that at the time of the commencement of that action there was another action pending between the same parties upon the same subject-matter. A dismissal had been filed in vacation, but judgment had not been entered thereon when the last suit was commenced. The court very properly held that in the sense in which the question arose, there was no action pending after the vacation dismissal. It was dismissed effectually as far as the plaintiff was concerned, and he did not afterwards retract his order and attempt to prosecute the. action further, and final judgment had been entered thereon before the plea was filed. Here, altogether a different question is raised, and the doctrine of that case is not applicable.
In the case of Hart v. Hart, 11 Ind. 384, the court had entered judgment upon the dismissal before the order complained of was made.
Our view of this question finds support, indirectly at least, in the case of McLain v. Draper, 109 Ind. 556.
It is next insisted that the facts did not warrant the court in making the order, because the action was discontinued as far as the plaintiff was concerned, and there was no necessity for the further expenditure of money in its prosecution.
The order was made under the first clause of section 1042, R. S. 1881, which vests in the discretion of the court the power to require the" husband to pay, pending the action, such sums as will enable the wife to efficiently prepare her case for trial. It is immaterial, in so far as the existence of such power is concerned, whether the court requires payment before expenses are incurred or afterwards. If services are rendered by attorneys in anticipation of an order of allowance, we see no reason why the order may not be made and enforced in their behalf, even after a reconciliation. An attorney can not, ordinarily, be deprived of his equitable lien upon the resources of the litigation, by the act of his client without his consent. Justice v. Justice, 115 Ind. 201.
It is not to be understood that attorneys have any absolute and primary rights to compensation under section 1042, supra, but courts have the discretionary power, under some circumstances, to protect them by an order of allowance, where inequitable results would otherwise follow.
The judgment is affirmed.