79 Ind. 224 | Ind. | 1881
— The appellant brought the action, alleging in Ms complaint substantially the following facts, to wit: That the defendant Samuel G. Irwin, at the February term, 1875, of the Montgomery Circuit Court, had made application for a divorce from his wife, the defendant Mary J. Irwin; that Mrs. Irwin employed the defendants William P. Britton and Melville W. Bruner, who were attorneys and counsellors at law and partners in the practice, to defend the suit and to present a cross bill, praying, for her, a divorce, alimony and the custody of her children; that afterwards, and pending the suit, Britton and Bruner, representing that they had authority from Mrs. Irwin so to do, requested the plaintiff, who was then a practicing attorney at law, to assist them in the defence of the action and in the prosecution of the cross bill; and, relying on said representation, the plaintiff engaged actively, and gave his assistance in the case, which on account of the social standing of the parties, and the magnitude of the interests involved, was important; that during the progress of the trial, at the urgent instance' of Britton and Bruner, it was agreed between Mrs. Irwin and the plaintiff that the plaintiff should receive one hundred and fifty dollars for his services; that his services were worth at least two hundred and fifty dollars; that the defendant obtained, upon her cross bill, a decree of divorce, and for the custody of some of her children, and a judgment for about $7,000 alimony; that, at the inception of the cause, upon an order of the court, the plaintiff paid oyer to Britton and Bruner, to enable the defendant to make her defence, two hundred dollars, Avhich they kept; and, on the final decree, the court, among other things, made an order alloAving to the defendant’s attorneys, without specifying them or either of them by name, five hundred
Wherefore the plaintiff makes them all parties, etc., demands, judgment against them all for $250, for the proper enforcement of his lien and other proper relief.
The defendants Irwin each filed a demurrer to the complaint for want of facts, which the court sustained and gave-judgment in their favor.
The court having overruled his demurrer to this answer, the appellant replied in two paragraphs:
First. That the said agreement was made after the trial had progressed nearly to its close, and prior to the finding of the court and to the allowance of said sum of $500, and while Mrs. Irwin was still a married woman; and that, after the reception of said money, the defendants promised to pay the plaintiff $150 of it, if he failed to get it of Mrs. Irwin.
Second. That said agreement was made after the trial had progressed nearly to its close and before the allowance of said $500, which the court made and intended for full compensation for all of the attorneys of the defendant, the court being kept in ignorance of the agreement aforesaid; that the agree
The appellees Britton and Bruner demurred to each paragraph of the reply, and saved exceptions to the adverse rulings of the court thereon, but have not assigned cross errors.
The appellant has assigned error upon the rulings of the court in sustaining the respective demurrers of the defendants Irwin to the complaint, in overruling his demurrer to the special answer of Britton and Bruner, and in overruling his motion for a new trial.
Assuming, without deciding, that the complaint shows a cause of action in favor of the plaintiff against Britton and Bruner, it is clear that the special paragraph of answer shows a good defence.
It shows that Britton and Bruner had been first employed to conduct the defence of Mrs. Irwin and to prosecute her cross bill, and that the plaintiff joined them, upon the express agreement with them and her that they should have whatever allowances the court should make for attorneys in the case, and that the plaintiff should look to Mrs. Irwin for compensation out of the alimony which should be awarded her in case she succeeded.
It was competent for the parties to make this agreement, notwithstanding Mrs. Irwin was yet under the disabilities of coverture. She could not bind herself personally to pay attorney’s fees. Pierce v. Osman,post, p. 259. But nevertheless she had the right to engage attorneys to represent her, -who should be entitled to receive such fee or compensation as the court should order the husband to pay, and, perhaps in case, no such order of the court had been made, but alimony had been awarded, would have had the right to
The special answer is not avoided by the facts stated in either paragraph of the reply. In the first paragraph is the allegation, that, after Britton and Bruner had received and receipted to the clerk for the money in question, they promised to pay the plaintiff a part of it; but this is a departure from the complaint, which alleges no such promise, and is predicated entirely upon a supposed duty or implied promise arising from the facts alleged.
The averment that Britton and Bruner entered satisfaction of the judgment for alimony is immaterial. If the plaintiff had acquired a valid lien upon the judgment, his right to collect the amount for which he had secured a lien, by execution upon the judgment, was not affected by the satisfaction; and, if his lien was not valid, he clearly has no ground for complaint on account of the discharge of the decree.
The averment that the alleged agreement was not made until near the close of the trial, and while Mrs. Irwin was still under coverture, is not inconsistent with the allegation of the answer, which is not denied, that the plaintiff accepted employment in the case — joined in the defence — under the terms of that contract.
It therefore stands admitted upon the pleadings, that when he came into the case the plaintiff agreed with Britton and Bruner, that they should have such allowances as the court should make for their client’s attorneys, and, this being so, they were entitled, upon the pleadings, to the judgment which was rendered in their favor. 2R.S.1876,p.l86,sec.372. Anditis unnecessary to consider whether upon the evidence, irrespective of the pleadings, a different result might be reached. The facts admitted in the pleadings can not be disputed on the trial.
It is proper to observe, however, that it is not averred in the complaint, that the appellant took, or attempted to take, a lien upon the sum allowed by the court for attorneys’ fees. The complaint is not explicit in this respect. The proof, how
It remains to consider whether the court erred in sustaining the demurrers of the defendant Irwin to the complaint; and tbis leads to the inquiry whether the plaintiff acquired a valid lien for his fee upon the decree for alimony.
Two reasons are urged against the validity of the lien asserted in ¡the complaint: first, that it was not taken in time; ■and, second, that the court having made an allowance for the fees of the attorneys of Mrs. Irwin, it was not competent for them, or any of them, to claim a lien beyond the sum allowed Iby the court.
The latter objection seems to be well taken; and the first, therefore, need not be considered.
It has been decided in a number of cases, and is no longer ¡the subject of dispute, that, while a wife may employ attorneys to prosecute or defend for her in an action for divorce, ¡she is not able to bind herself or her property to pay for the ¡service of such attorney. Pierce v. Osman, supra. In Putnam v. Tennyson, 50 Ind. 456, it seems to have been held, that, if a judgment for alimony is obtained, the attorney may ■enter a lien upon the judgment; and, if she afterwards assents -.to the amount so claimed, it becomes a valid lien.
The 17th section of the act regulating the granting of divorces provides, that, “ on decreeing a divorce in favor of the wife or refusing one on the application of the husband,, the court shall, by order, to be enforced by attachment, require the husband to pay. all reasonable expenses of the wife in the prosecution or defence of the petition when suck divorce kas been granted or refused.” 2 E. S. 1876, p. 329.
Tke power and duty is imposed on the court, in each case within the scope of this provision, to determine and adjudge against the husband all the wife’s reasonable expenses in the case. This includes her attorneys’ fees, and when the court has determined the reasonable amount thereof, the determination is conclusive on all concerned, parties and attorneys. See Husband v. Husband, 67 Ind. 583. The sum so allowed having been determined to be the fair and reasonable fee, there is no ground left for claiming a further sum as a lien upon the decree for alimony. The only basis for claiming such a lien, if it can be claimed at all under the statute, in the absence of a binding contract, is, that it is just and reasonable ; and, when the court has already determined and allowed what is just and reasonable in the particular case, the entering of a lien for more is necessarily unjust and unreasonable, and therefore not permissible.
Judgment affirmed, with costs.