25 N.E.2d 642 | Ind. | 1940
This is an original action for a writ of mandate against the Superior Court of Madison County and a special judge thereof. The relators were attorneys for a wife who was sued for divorce by her husband. A cross-complaint for divorce was filed by the defendant in that action. The petition recites that upon the trial of the cause the relators "inadvertently omitted to introduce expert opinion testimony as to the value of their services in defense of the husband's application for divorce." At the conclusion of the evidence, and before the finding was announced, relators made an oral request that they be permitted to show the value of their attorneys' fees and to make proof thereof. This request was refused and the court thereupon found against the plaintiff on his complaint and against the defendant on her cross-complaint and rendered judgment accordingly. Thereafter, and during the term, relators filed in said cause their motion to vacate the judgment and to modify the same by having an order made to require the plaintiff in the divorce action to pay a reasonable sum as attorneys' fees for the defense of the wife in said divorce suit. The court struck out the relators' motion upon the grounds that they were not parties of record and that the court was without jurisdiction to pass upon the matters presented thereby. This action followed.
Relators are proceeding under chapter 160 of the Acts of 1939, § 3-1216 Burns' 1933 (Supp.), § 923, Baldwin's Supp. 1939, which provides that: *643
". . . 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 defense of the petition including a reasonable sum for the services of the attorney representing such wife which sum for attorney fee shall be payable direct to said attorney and the order for same shall be in the name of said attorney, when such divorce has been granted or refused."
It is the theory of the relators that this provision of the statute placed an absolute duty upon the trial judge to make an allowance in their favor for the services rendered by 1-3. them for the wife in said divorce proceeding. It is to be noted that in prescribing the duties of the court the statute uses the word "shall," which ordinarily imports an imperative, rather than a directory, obligation. State, ex rel.
v. Meeker (1914),
In the present case there is no showing that any application or petition for an allowance of attorneys' fees was presented. The action of the trial court in refusing to reopen the case 4, 5. to hear evidence as to the value of said services was a matter of discretion which is not here for review. The refusal to vacate the judgment and modify the decree was justified in the absence of some showing that an allowance for the attorneys had been demanded.
Relators urge that if their petition is denied they will be left without a remedy. The record discloses that an appeal was prayed. Whether they have such an interest in the judgment as will authorize them to appeal will be determined if they undertake to perfect their appeal.
The petition for writ of mandate is denied.
NOTE: Reported in