Schlemmer v. Schlemmer

107 Mo. App. 487 | Mo. Ct. App. | 1904

ELLISON, J

Plaintiff and defendant were husband and wife and in the year 1896 he brought a suit against her for divorce. On February 1, 1897, there was an order and judgment in defendant’s favor for an allowance.of an attorney’s fee, and also temporary maintenance of a small sum per week. Plaintiff paid $9 on this. The case seems to have been .continued on for a little more than a year, when it was dismissed. Plaintiff, shortly threafter, instituted another action on the ground of adultery and obtained a divorce from defendant for that reason, in September, 1898.

Thereafter, in December, 1902, defendant had execution issued on the foregoing judgment in which the sum claimed is the aggregate of the maintenance from the date of the judgment until the dismissal of the case. Plaintiff filed his motion to quash the execution. The ground upon which he bases this motion is that, the entire judgment was compromised and settled; and that since plaintiff, after the judgment was rendered, obtained a decree of divorce from defendant her right in the judgment was forfeited under the terms of section 2929, Revised Statutes 1899, which reads as follows:

“In all eases of divorce from the bonds of matrimony, the guilty party shall forfeit all rights and claims under and by virtue of the marriage. In all cases where the proceedings shall be ex parte, the court*shall, before it grants the divorce, require proof of the good conduct of the petitioner, and be satisfied that he or she is an ■ innocént and injured party.”

We think that statute has no application to alimony pendente lite. The object of such maintenance of the wife is that she may be supported while the divorce proceeding is pending and to enable her to prosecute or defend in such proceeding. Such maintenance has no connection or dependence upon the final result. Steele v. Steele, 85 Mo. App. 224. The case of Motley v. Motley, 93 Mo. App. 473, has no application to the point in dispute. We are therefore of the opinion that the plain tiff is liable for the amount due under the court’s order up to the date of the dismissal of the action, and that the court properly refused to quash the execution therefor.

But it is a part of plaintiff’s case that the judgment was compromised and settled by plaintiff and that for that reason an execution was wrongfully issued. It is settled law that an attorney has no authority, as such, to compromise his client’s judgment, though obtained by him while representing the client. State v. Clifford, 124 Mo. 492; Wharton’s Agency, sec. 595. In this case, the court found that the judgment, except as to the attorney’s fee, had not been compromised. The issue involved, judging from the course of the argument, was, first, that the attorney did not in fact compromise; and, second, that he had no authority from the defendant to compromise. A finding on either branch supports the judgment, and it is consequently affirmed.

All concur.