19 Haw. 463 | Haw. | 1909
OPINION OP THE COURT BY
The plaintiffs sued to recover $100 on a quantum meruit for their professional services to the defendant’s wife as her attorneys on her appeal to this court from a decree of divorce granted to the defendant, and in drawing and preparing briefs, typewriting and attendance in the matter, averring that the services were necessary for protecting and defending her rights. The defendant’s demurrer on the grounds that the complaint did not state a cause of action and showed that the court had no jurisdiction was sustained on both grounds. The plaintiffs appeal on the points of law involved in sustaining the demurrer.
The appellants in their brief say that they moved the judge who granted the divorce to grant them counsel fees and that he overruled their motion claiming that he had not jurisdiction to grant it. As the defendant contends, this might make the matter res judicata, but as the fact does not appear in the record it is not considered.
The demurrer was properly sustained. There is nothing in the complaint which shows that in attending to the appeal the plaintiffs gave credit to the husband or that the wife had not means of her own to pay for their services or that she requested
An attorney then has no absolute right under any circumstances to an order of court to compel the husband to pay him' a fee since it is within the reasonable discretion of the court to determine the necessity of engaging counsel. A case may occur in which it is so clear that a divorce ought to be granted or refused that the court 'would not consider that an attorney was needed. In other words, it is for the court and not the attorney to determine in a divorce suit whether his services are necessary to the wife’s defense or not. It follows that if without order for payment of his fee by the husband he takes upon himself to defend, he has no right to look to the husband for compensation since.it was the judge who tried the libel, and not counsel nor the wife, who is to pass upon the occasion for legal services, subject of course to reversion on appeal from a refusal of the court. Legal services in defending a libel are not, like such things as food, clothing and shelter, a necessary per se, the occasion for them being for the court to determine. “In England the practice of providing means for the wife in a pending divorce by or against her husband has been managed by interlocutory orders in the ecclesiastical courts and a temporary
The remedy at law for neglect of the husband’s duty to support his wife “is for the wife to purchase necessaries on her husband’s credit and then for those who furnish such necessaries to sue the husband for their reasonable value.” Dole v. Gear, 14 Haw. 554, 556. “Where the husband and wife are living separate and apart one furnishes necessaries to the wife at his peril and must show, among other things, in order to recover, that the wife was in need of the necessaries, that the husband failed to supply her with them and that she had authority to bind her husband, that is, that she was justified in living apart from her husband.” Forrester v. Hurtt, 18 Haw. 215, 216. The plaintiffs’ complaint contains no such averments which are essential to a right of action. Brown v. Ackroyd, 34 Eng. L. & E. 214, 217, lays down the rule that “a wife has authority to pledge her husband’s credit for the costs of the divorce suit where there are reasonable as well as where there are absolute grounds for instituting the suit,” and “that the proctor suing the husband must prove a reasonable cause for instituting the suit, otherwise it would be illusory to say that the wife may, under such circumstances, apply to the Ecclesiastical Court for protection.” The court, however, held that there was not reasonable cause for instituting the suit. Morris v. Palmer, 39 N. H. 123, holds on the contrary that the husband is liable for necessary costs in a prosecution against him upon complaint of the wife for a breach of the peace, placing the case on the same basis as a divorce suit. In Gossett v. Patten, 23 Kan. 240, a divorce suit in which the wife was charged with acts derogatory to her character and it was necessary for her in order to protect her good name to
An attorney’s fees will not be taxed in a divorce suit. “The authority of the court over the allowances for the wife’s expenses of the suit excepts such cases from the operation of the general rule.” Gertz v. Gertz, 5 Haw. 175. Legal services in defending a wife upon her retainer in criminal actions against her for desertion of her husband are- not necessaries for which an action quantum meruit lies. “To allow a suit on the quantum meruit in such a case would be a dangerous rule leading
Judgment affirmed.