76 Neb. 282 | Neb. | 1906
May 31, 1904, Emma Petersen begun an action in the district court for Douglas county against Soren T. Petersen with whom, she alleged in her petition, she had liyed for more than ten years then last past as his wife, and by whom during that time she had been recognized as such publicly and in such manner as to establish a lawful marriage between him and herself, but alleging that he had been guilty of certain breaches of duty toward her in that relation on account of which she was entitled to a decree of divorce and alimony, for which she prayed. The petition also contained a prayer for temporary alimony to enable the plaintiff to maintain and carry on her action. On the next day the defendant was served with a copy of the petition together with a notice that the application for temporary alimony'would be urged upon the attention of the court three days later, viz., on June 4. On the latter date the hearing of the application was, at the request of the defendant, postponed until June 10. On the 6th of June the parties met and effected a reconciliation, which was ratified on the same day by a formal celebration of their marriage in conformity with the statute. What their relations had been before that time does not appear, otherwise than by the allegations of the petition in response to which no pleading was ever filed, but- on the 18th of the month the plaintiff filed in the court a formal written application to dismiss the action at her own costs, which motion the court on the same day denied, because of the pendency of a petition by J. A. 0. Kennedy, attorney for the plaintiff, for leave to intervene and prosecute a claim against the husband for an allowance of a sum of money, as for alimony, to compensate him for his services in the beginning and prosecution of the suit. To this application the defendant filed a general demurrer, which was afterwards sustained,. and the petition for an intervention was dismissed, as was also the action, at the renewed request of the plaintiff. The intervener Kennedy prosecutes error.
Intervener cites no authority in support of his claim, but several are cited in opposition thereto, among wbicb are: McCulloch v. Murphy, 45 Ill. 256; Thompson v. Thompson, 3 Head (Tenn.), 527; Carden v. Carden, 37 S. W. (Tenn. Ch. App.) 1,022; Anderson v. Steger, 173 Ill. 112, 50 N. E. 665. The case of Aspinwall v. Sabin, 22 Neb. 73, cited by plaintiff in error, goes, we think, to tbe very extreme in this direction, but still falls short of reaching the end he seeks to attain. In that case an award of alimony specifically as fees to tbe plaintiff’s attorneys bad in fact been made apparently for services already rendered. That is to say, tbe court bad adjudged tbe right of counsel to compensation and tbe amount of it against both tbe plaintiff and tbe defendant, and tbe subsequent’ reconciliation of tbe parties and their dismissal of tbe action did not bave tbe effect to satisfy or annul that judgment. In Waters v. Waters, 49 Mo. 385, cited by plaintiff in error, tbe husband was plaintiff in a divorce suit wbicb be had prosecuted so far as to compel bis wife to obtain
We are of opinion therefore that the court did not err in sustaining the demurrer and dismissing the intervention, and recommend that the judgment be affirmed.
By the Court: For the reasons stated in the foregoing opinion, it is ordered that the judgment of the district court be
Affirmed.