— We granted certiorari to review the taxation against a husband of fees for his wife’s attorneys upon dismissal by the court, after trial, of an action for divorce brought by .the wife.. The husband, defendant in the divorce action, is: plaintiff in this certiorari action. See rule 307, Rules of Civil Procedure.
Plaintiff’s wife sued him for divorce, alleging he had been guilty of such inhuman treatment as to endanger her life. After a contested trial the court’s final decree held plaintiff had failed to carry her. burden to prove such treatment, her petition must be dismissed at defendant’s (plaintiff in certiorari) costs and as part of the costs fees of .$250 for her attorneys shall be taxed. Only the taxation of attorney fees is now challenged.
In Wald v. Wald,
■ “No. order for suit' money was made until after a trial on the merits, and a judgment that the plaintiff was not entitled to. a divorce. The court then had no power to make the allowance: under the facts presented in this 'case. The same principle' is involved here that was.considered and determined.in Sherwin v. Maben,78 Iowa 467 .
“We still adhere to the conclusion ■ there reached, and the judgment is reversed.” ‘ : ...
In Stockman & Hamilton v. Whitmore,
The Stockman opinion goes on to distinguish Porter & Moir v. Briggs,
Read & Read v. Dickinson,
*723
Wick v. Beck,
This is also from the Wick opinion (pages 129, 130): “To hold that a wife can commence a suit against her husband for a divorce, without legal grounds therefor, and compel the husband to pay attorneys’ fees incurred by her in the prosecution of the suit, whether she afterwards dismiss the suit, or whether it is adjudged against her, would not be consonant with reason or the policy upon which the rule of necessaries rests.”
Wick v. Beck (at page 126) thus analyzes Wald v. Wald, supra,
The result reached in Wick v. Beck is that an attorney was denied recovery from the husband even for services rendered the wife in defense of the husband’s cross-petition for divorce on the ground it did not appear the services were necessary for the wife’s protection.
There is a dissenting opinion in the Wick case. However it states (pages 139,140 of 171 Iowa) : “All of our decisions recognize the difference between services rendered by counsel in aid *724 of an action brought by the wife, which fails for some reason or for no reason, and like services rendered when thé action is by a husband against the wife, especially where, as here, hot only the good name and the fame of the wife are involved, but also her right- -to -support.”- -The dissent also observes (page 142) ■ “there is much reason for saying that if they [married women] - bring divorce suits against their husbands, and are unsuccessful, attorneys should look to them alone for their pay.” . -
Division IY of the annotation ih:25 A. L. R. 354 et seq.- is-devoted tó'Iowá decisions on the liability of a husband in an independent action for services rendered by an attorney to the wife in á divorce suit. The rule in Iowa is said to be “that an attorney may hold the husband liable for legal services rendered the wife '-in divorce proceedings, where it appears that the services were necessary for her-protection’?, (.page 358).
We have considered the precedents .cited by attorneys, for plaintiff’s wife in defense of the certiorari action. McCarty v. McCarty,
We see no escape from the conclusion that-unless Wald v. Wald,.which-has been approved at least twice in- later opinions, lis tó be overruled we must hold the-trial court was without power to tax' against the husband a fee for the wife’s' attorneys upon .dismissal of her petition for divorce. We are not pérsuaded a rule of such long standing should be overruled.
Counsel seeking 'to uphold the court’s-order assert two Code sections -grant 'jurisdiction to make the order complained of— 598.11'and-598.14. We will consider the latter first. - It provides *725 in pertinent .part, “When a divorce is ■decreed, tbe . court may-make such order in relation'to the children, property,- parties, and- the maintenance of the- parties as shall- be right.” ■ ■
Any claimed power section 598.14 confers is conditioned upon the decreeing of a divorce. Oliver v. Oliver,
So far as pertinent Code section 598.11 provides, “The court may order either party to pay the clerk a sum of money * * * to enable such'party to prosecute or'defend the action.” There is nothing to indicate the wife sought or the court granted an allowance of attorney fees under this provision, to enable her tó prosecute her action. As stated, she was not called upon to defend any cross-action by her husband. '
p0wer conferred by section 10478 [now 598.11] is limited to the making of an allowance to enable the party benefited thereby to defend the * * * divorce action or to prosecute such action.” Dallas v. Dallas,
Applications for allowances under this.statute are usually made in advance of the-trial or in any event before-final submission of the case.. Frequently the court makes an advance allowance- where relief under section 598.11 is deemed .proper. We have approved making such an allowance to meet the immediate needs of the spouse, usually the wife, to prosecute or defend the action and in the final disposition of the ease add thereto such sum as appears just and equitable under all the circumstances. Main v. Main,
While it is quite possible the wife could have procured an allowance for attorney fees here by proceeding under section 598.11 we do not understand she so proceeded nor does it appear the court acted thereunder.
There is another ground upon which the allowance of attorney fees here might be held illegal within the meaning of rule 306, Rules of Civil Procedure, relating to certiorari, were the point raised. The attorney fees were ordered taxed as part of the costs. The right to recover attorney fees as part of the costs does not exist at common law. They cannot be so allowed in the absence of a statute or agreement expressly authorizing it. In order that they may be so taxed the case must come clearly within the terms of the statute or agreement. Indeed the court does not have inherent power to tax costs even to the losing party. Harris v. Short,
We know of no- statute which expressly authorizes taxation of these attorney fees as part of the costs. It is not claimed there was an agreement therefor. Since this point is not argued our decision is not based thereon.
As indicated, attorneys who acted for the wife in the divorce suit appeared in this certiorari action on behalf of defendant-court and filed a printed brief of eight, pages. In so doing they acted in accordance with prevailing practice. Defense to certiorari actions is usually made, on behalf of the tribunal whose order is attacked, by counsel for the party who there'prevailed. These counsel filed a motion here for the allowance against plaintiff-husband of fees to them for defending the present action in this court. The motion asserts and it is admitted the wife died before the petition for the writ of certiorari was filed, she left no estate and none has been opened. The motion was ordered submitted with the present action. The entire controversy was submitted to us without oral argument since none was requested.
Plaintiff’s resistance to the motion above referred to alleges *727 tbe judgment for attorney fees is a lien upon his land, the attorneys in whose favor it runs refused to release it and thereby necessitated this action. Not to be outdone by the movants, plaintiff’s attorneys ask that a reasonable fee for their services in this court be allowed against the movants. This request is denied as unauthorized by statute, rule or decision.
We also deny the motion of the attorneys who acted for the deceased wife for allowance by us. against plaintiff of fees for defending the certiorari action. We have held the award was in excess of the court’s power under the facts presented. Since the wife died, it is clear the attorneys are not acting for her but for themselves. The authorities are divided on whether an attorney is ever entitled to fees for acting for himself. See 20- C. J. S., Costs, section 218b, page 460; 14 Am. Jur., Costs, section 72. Without expressing an opinion on this point, we are not persuaded attorneys can or should recover fees against the party who is successful here for services rendered for themselves in defense of such an order..
The order of defendant-court taxing fees for the wife’s attorneys against plaintiff is — Annulled.