196 P. 211 | Idaho | 1921
On November 11, 1915, Clarinda Taylor, wife of B. Z. Taylor, commenced an action for divorce, and for a division of the property, temporary alimony, attorney fees and costs. A restraining order, enjoining her husband from encumbering, transferring or otherwise disposing of his property pending the action was prayed for, and at the same time she asked that a show cause order issue, directing him to appear and show why he should not pay temporary alimony, costs and attorney fees, both of which orders were issued by the court.
Before the day set for the hearing upon the show cause order, a stipulation continuing the hearing was entered into between B. Z. Taylor and counsel for Clarinda Taylor, to the end that an amicable property settlement might be reached by the Taylors without further litigation. Prior
On January 29, 1916, a motion to continue the cause for the recovery of attorney fees and costs expended was filed by R. W. Swagler, Esq., and Messrs. Scatterday and Van Duyn, counsel for Mrs. Taylor, and an order was issued by the court, directing B. Z. Taylor to appear and show cause why the attorney fees, costs and expenses should not be paid. A hearing was had on February 3, 1916.
On January 20, 1917, Clarinda Taylor joined with her husband in a motion to dismiss the action, which motion was resisted by her counsel, who filed a claim of lien under the provisions of C. S., sec. 6576, with objections to the dismissal of the action, supported by affidavits setting out, among other things, their employment by Clarinda Taylor, the nature of the services performed by them, that said services were reasonably worth the sum of $600, and that they had advanced certain fees and made other disbursements.
A hearing was had on January 27, 1917, and on February 13, 1917, the court overruled the motion for a continuance, and on February 26, 1917, entered its judgment dismissing the action.
This appeal is from the order overruling the motion for a continuance and from the judgment dismissing the action.
The questions presented are, first: Is it within the power of a trial court under the provisions of C. S., sec. 4642 to allow attorney fees for past services in divorce actions? and, second: Are attorneys entitled to a lien upon the cause of action for a decree of divorce to such an extent that the same cannot be dismissed upon motion of the plaintiff or upon agreement of the parties-until the lien has been settled or determined? These will be discussed in the order in which they are stated.
C. S., sec. 4642, 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
By the term “while an action for divorce is pending” is meant any time from the commencement of the suit until and including the final order disposing of the same. (Brasch v. Brasch, 50 Neb. 73, 69 N. W. 392; Kiddle v. Kiddle, 90 Neb. 248, Ann. Cas. 1913A, 796, 133 N. W. 181, 36 L. R. A., N. S., 1001.)
When, in a divorce ease, the wife has incurred liabilities for attorney fees and other expenses of the suit, the trial court may, in its discretion, under the provisions of sec. 4642, supra, after such expenses have been incurred and at any time while the action is pending, upon proper showing being made, order the husband to advance the money to pay them. (Wyatt v. Wyatt, 2 Ida. 236, 10 Pac. 228; Roby v. Roby, 9 Ida. 371, 3 Ann. Cas. 50, 74 Pac. 957; Day v. Day, 12 Ida. 556, 10 Ann. Cas. 260, 86 Pac. 531; Callahan v. Dunn, 30 Ida. 225, 231, 164 Pac. 356; Donaldson v. Donaldson, 31 Ida. 181, 170 Pac. 94; Taylor v. Taylor, 70 Or. 510, 140 Pac. 999, at 1003.)
In the case of Donaldson v. Donaldson, supra, the action of the trial court in awarding attorney fees to the respondent in the final judgment was assigned as error. That portion of the judgment reads as follows: “It is further ordered, adjudged and decreed that the plaintiff shall have judgment against the defendant for the sum of $150 as additional attorney’s fees for plaintiff’s attorneys, .... to be paid to the clerk of the . . . court . . . . , and by the said clerk to be paid to plaintiff’s attorneys . . . .”
In construing C. S., see. 4642, in the majority opinion the court held that: “The right of the court to allow attorney’s fees is derived from the statute, and by the terms of the statute can only be put into operation when it is necessary to enable the wife to prosecute or defend the action. The allowance of attorney’s fees looks to the future and not to the past.”
It appears in that case that prior to the trial the respondent made formal application to the trial court for temporary
Coming now to the second question presented, we are of the opinion that in the absence of C. S., see. 6576, the action may have been subject to dismissal under the provisions of C. S., sec. 6830. (Reynolds v. Reynolds, 67 Cal. 176, 7 Pac. 480.) It, therefore, becomes necessary to construe sec. 6576, supra, which is as follows: ,
“. . . . From the commencement of an action or service of an answer containing a counterclaim, the attorney who appears for a party has a lien upon his client’s cause of action or counterclaim, which attaches to a verdict, report,
The purpose expressed in the foregoing statute was to give an attorney a lien upon his client’s cause of action for professional services rendered in connection therewith, which could not be affected by any settlement between the parties before or after judgment. It is contended that in an action for decree of divorce, where the parties admit condonation and ask for the dismissal of the action, there is no cause of action to which the lien may attach. We are of the opinion, however, that the provisions of the statute are broad enough to include all forms ofv action. While the action for decree of divorce, after condonation by the injured spouse, may not be resumed, it may be continued for the purpose of requiring the husband to pay such sum as will enable the wife to pay her attorneys for services rendered and expenses incurred, although the parties have become reconciled and ask a dismissal of the action.
It has been held by very respectable authorities that, aside from any statutory lien, an attorney who has in good faith instituted such an action and carried it on for some time cannot be deprived of Ms right to compensation for the services so rendered by reconciliation of the parties, followed by a resumption of cohabitation. (Fullhart v. Fullhart, 109 Mo. App. 705, 83 S. W. 541; Kiddle v. Kiddle, supra.)
The allowance of attorney fees after a settlement has been made between the husband and wife' is fully discussed in the case of Kiddle v. Kiddle, which is analogous to the ease at bar. In that case it was urged on behalf of the husband that the reconciliation deprived the court of authority to make an allowance for attorney fees, but, in the absence of a statute providing for a lien for attorney fees, the court said, in the course of the opinion, that:
“To permit the defendant to obtain a continuance of the hearing upon the application for attorney fees until he
While there are cases which hold to the contrary rule, the reasoning of the eases supporting the views herein expressed appeals to us as eminently sound, particularly in view of the provisions of sec. 6576, supra.
From what has been said it follows that the action of the trial court, denying the motion for a continuance, and in dismissing the action, was erroneous. The order and. judgment are reversed and the cause remanded for further proceedings in accordance with the views herein expressed. Costs are awarded to appellant.
