48 Neb. 720 | Neb. | 1896
On the 30th of March, 1893, Alice .Davis, by her attorneys, Switzler & McIntosh and Sims & Bainbridge, filed in the office of the district court of Douglas county Inn- petition praying a divorce from her husband, John 0. Davis, an allowance of alimony, and the custody of the two minor children of the parties litigant. On May 26, 3893, the default of the defendant was entered of record. On August 19, 1893, Jacob Sims and Switzler ■& McIntosh filed an application for the allowance of a balance due them as attorneys’ fees and requiring the defendant to pay the same. On the 24th day of August, 1893, plaintiff filed a dismissal of this action, and such dismissal was entered of record by the clerk. The application for allowance of attorneys’ fees and dismissal was filed during vacation. The attorneys caused to be served on Alice Davis and John 0. Davis, September 8, 1893, a notice of their motion to set aside the order of dismissal entered in vacation. On September 28, 1893, the motion of the aforesaid attorneys for the vacation of the order of dismissal and the allowance of attorneys’ fees was overruled. By a petition in error, in which the attorneys appear as plaintiffs and Alice and John 0. Davis as defendants, it is sought to reverse the aforesaid ruling upon said motion.
If the dismissal operated to end the action, this case falls Within the rule announced in Lavender v. Atkins, 20 Neb., 206, wherein, as to the rights of counsel to be heard after a dismissal, it is said: “What the rights of counsel may be in the case, it is not necessary to discuss. It is only necessary to say that Lavender and defendants having settled their dispute, the case is at an end, and the litigation in that suit cannot be continued.” If, on the other hand, as seems to be contended by plaintiffs in error, their pending motion was merely interlocutory and for some purposes continued the action in existence, notwithstanding the filing of a dismissal, the result is
Dismissed.
