22 S.D. 74 | S.D. | 1908
This is an appeal by the defendant from a judgment on a directed verdict in favor of the plaintiffs. The action was instituted by the plaintiffs to recover for legal services alleged to have been rendered by the plaintiffs to appellant’s wife in instituting an action for divorce by her against him.
It is contended by the appellant that the court erred in directing a verdict against him for the reason that he was not liable to the plaintiffs on account of services so rendered to his wife; and the question therefore' presented is: Were the plaintiffs entitled to a verdict against the defendant upon the facts disclosed in this case? It appears Jrom the evidence that in the month of June, 1905, the appellant’s wife employed the,plaintiffs to commence an action against the appellant for a divorce; that after a series of consultations the plaintiffs commenced said action by preparing and causing to be served upon the appellant a summons and complaint in due form; that at the same time plaintiffs also prepared and caused to be served upon appellant an- application for temporary alimony and attorney’s fees; that thereafter, and before the hearing upon the application for temporary alimony and attorney’s fees, the plaintiffs were- by appellant’s wife advised that she had decided to drop the case, and said action for divorce was thereupon
Section 103 of the Revised Civil Code provides: “If the husband neglect to malee adequate provisions for the support of his wife except in the cases mentioned in the next section any other person may in good faith supply her with articles necessary for her support and recover the reasonable value thereof from her husband.” Section 90 of the same Code provides: “While an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children', or to prosecute or defend the action.” And section 93 provides: “The court may require the husband to give reasonable security for providing maintenance, or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of á receiver or by any other remedy applicable to the case. * * *” It will thus be seen that, if the husband neglect to make adequate provisions for the support of his wife, any other person may in good faith supply her with articles necessary for her support and recover the reasonable value thereof from the husband. It will be further observed that while an action for divorce is pending the husband may be required to pay, not only alimony to his wife, but also money to prosecute or defend the action. It is quite clear under the authorities that the value of the services rendered by- the plaintiffs in instituting the action for dvorce by the wife against her husband cannot be recovered under
The Supreme Court of Connecticut, in Shelton v. Pendleton, supra, in a case analogous to the one at bar and regarded as a leading case upon this subject, says: “The common law defines necessaries to consist only of necessary food, drink, clothing, washing, physic, instruction, and a competent place of residence.” Whittingham v. Hill, Cro Jac. 490; 2 Kent, Com. 124. That learned court then proceeds to give the reasons why at common law such an action cannot be maintained against the husband as follows: “The duty of providing necessaries for the wife is strictly marital, and is imposed by the common law in reference only to a state of coverture, and not of divorce. By that law a valid contract of marriage was and is indissoluble, and therefore by it the husband could never have been 'placed under obligation to provide for the" expenses of its dissolution. Such an event was a legal impossibility. Necessaries are to be provided by a husband, for his wife to sustain her as his wife, and not to provide for her future condition as a single woman, or perhaps as the wife of another man.”
In Clarke v. Burke, supra, in an action similar to the one at bar, the Supreme Court of Wisconsin, speaking by Mr. Justice Cassoday, says:. “During the pendency of the action for divorce it was competent for the court-in that action to require the husband to pay such sums' for the support of the wife, and 'to enable her to carry on the action, as in its discretion might have been deemed necessary and' proper. Section 2361, Rev. 'St. This statute has frequently received a very liberal' construction from this court. Upon such construction there can be no doubt that the plaintiffs, as attorneys rendering services in good faith in prosecuting an
strenuously insisted h)»- the plaintiffs that at common law the husband is liable for necessaries furnished his wife, and that the common law of England is in force in this state; hence the law implies a promise on the part of the husband to pay plaintiff for legal services rendered to the wife. The fallacy of this argument is in the conclusion drawn from the premises stated. Thus a husband, while the marriage relation exists, is liable for necessaries provided the wife; but the professional services of plaintiff were not necessaries within the common-law meaning of that term.” This case and the case of Clarke v. Burke, supra, are in point, for the reason that the Nebraska and Wisconsin statutes contain provisions quite similar, if not identically the same, as those contained .in the Code of this state.
The judgment of the circuit court and order denying a new trial are reversed.