delivered the opinion of the Court.
Thе relator prays for a writ of mandamus to the Honorable Cullen W. Briggs, Judge of the 117th Judicial District of Nueces County, requiring him to rescind an interlocutory order in a divorce suit entitled Mary Ethel Pope Wallace v. W. F. Wallace, Sr. that commanded relator Wallace to pay over to respondent wife the sum of $10,500.00 for attorneys’ fees and $1,300.00 for future expenses that may be incurred by her in the prosecution of this divorce action.
Mrs. Wallace filed suit for divorce on or about October 2, 1960. On the following day a temporary restraining order was issued in the usual form enjoining the defendant husband, W. F. Wallace, from disposing of any of the community assets and from threatening or communicating with the plaintiff at any time and place. Thereafter, temporary injunсtion was granted continuing in force the matters enjoined in the restraining order, ordering *487 an inventory and appraisement and awarding to the plaintiff the sum of $1,000.00 per month as temporary alimony.
Mrs. Wallace then filed a motion asking that there be set аside to each of the parties the sum of $50,000.00 from the community assets for the purpose of “making gifts and paying all necessary expenses in the operation of community affairs prior to the end of the taxable year ending on Decembеr 31,1960.” At a hearing the relief sought on that motion was denied. But nothwithstanding the fact that no written motion had been filed asking for the payment of attorneys’ fees and the allowance for future expenses, the court proceeded to receivе testimony as to those matters. He then ordered that W. F. Wallace pay over to Mrs. Wallace forthwith the following sums: $805.00 for expenses incurred by her to the date of this hearing; $1,300.00 for expenses to be incurred by her in the future in the prosecution of this cаse, and $10,500.00 for attorneys’ fees incurred for services to date.
The attorneys’ fees allowed consisted of the following:
To the firm of Barlow, Bland & Rehmet $1,500.00
To the firm of King, Anderson & Porter of Corpus Christi 3,500.00
To Burcham Budd of Dallas, an attorney specializing in tax matters 3,000.00 and
To W. F. Wallace, Jr., the son of the plaintiff and defendant for advice and consultation, attorney’s fees in the sum of 2,500.00
It аppears that at the present time none of these are presently attorneys of record, both of the named firms having withdrawn from the case.
William R. Anderson who represented Mrs. Wallace at this hearing testified that a reasonable feе for his services up to the time of the hearing was $3,500.00; that the value of Mr. Bland’s services for the time and work he devoted to the case and who had therefore withdrawn, was reasonably worth the sum of $1,500.00. Mr. Anderson also testified that it was necessary to employ an attorney to render advice in respect to tax problems that would arise; that Mr. Burcham Budd of Dallas had been *488 retained for that purpose and that the reasonable value of Mr. Budd’s services would run from $2,500.00 to $3,000.00. It is not clear whether that fеe was claimed for services that had been rendered or were to be rendered in the future. However, Mr. Budd had sent in no statement for his services and Mr. Anderson had no idea of how much time Mr. Budd had spent on the case.
W. F. Wallace, Jr. testified that he wаs his mother’s personal attorney and had consulted with Mr. Bland and Mr. Anderson and Mr. Budd, and had devoted some time every day since October 1,1960, in connection with her business. He claimed that a conservative estimate of the value of his services since Oсtober 1st would be $2,500.00. The witness also testified that he would probably be compensated by his mother if she wanted to pay him, otherwise he would not be.
Wallace, Jr. also denied that his mother had employed him as an attorney in the case, but that she emрloyed him as a general attorney and he was counseling and working with the attorneys handling the divorce case for her; that he was not “her counselor for the divorce”.
The court predicates his authority to enter this order upon the provisiоns of Art. 4636, Vernon’s Ann. Civ. Stat., which reads:
“Pending suit for a divorce the court, or the judge thereof, may make such temporary orders respecting the property and parties as shall be deemed necessary and equitable.”
That article has been сonstrued to confer the power upon the trial court to make such temporary orders as to appoint a receiver to take charge of the property, to award temporary custody of children, to direct the filing of аn inventory and appraisement, to set apart the homestead for the temporary use of the wife and children, to award temporary alimony and the like. But the order here entered is in no sense temporary in its nature. It fixes the payment оf attorneys’ fees for past services rendered to date of the hearing, and as to that matter is final and conclusive. We know of no such authority vested in the trial court by either statute or usage.
The court has the power on the final dispositiоn of the case to award attorneys’ fees to the wife, the reasonableness of which are to be determined by the trier of the facts, and they are then *489 entered as a part of the final judgment. Even then there is no authority for the judge to summarily order them paid or attempt to enforce that order by contempt proceedings.
In support of her contention that the judge has the authority to order the payment of these attorneys’ fees by summary action and in advance of thе trial, Mrs. Wallace cites Hendry v. Hendry,
The respondent argues that the wife may be allowed an attorney’s fee even though the suit for divorce is dismissed or where the divorce has been denied. The cases he cites support that proposition but in no way do they uрhold the summary order of the trial judge in our case.
In McClanahan v. McClanahan,
Speer’s Law of Marital Rights, 3rd Ed., § 638, p. 796, provides.
“It is not essential that the wife recover to have her attorney’s fee. If the suit be brought in good faith, she may ordinarily recover them, or where she is the dеfendant she may recover them, such expenses being ordinarily a necessary. Whether they are a necessary depends largely on the *490 good faith —probable grounds of the wife in instituting the suit or making the defense.”
But all that this means is that the attorneys’ fees may be recovered in a suit and fixed by a final judgment based upon the evidence. This is well illustrated by the holding in Roberts v. Roberts,
Mrs. Wallace cites Turman v. Turman,
“The trial court had the right and authority, under a separate order, to allow attorneys’ fees for aрpellee and to order same paid out by the receiver from the assets in his hands. This order is not a part of, nor is it incorporated in the final judgment appealed from here, and appellant cannot attack such an order on this аppeal, under the circumstances.”
The opinion does not reveal at what stage in the proceedings the attorneys’ fees were ordered to be paid nor is it shown whether or not the trial court’s judgment was superseded. At any rate in our оpinion the decision in that case does not support the action of the trial court complained of here.
The only pleading filed by Mrs. Wallace in this case requesting any allowance for attorneys’ fees is in her original petition whеrein she prays that on final hearing on her suit for divorce she have judgment for attorneys’ fees.
*491
Admittedly the power conferred upon the court by Art. 4636, Vernon’s Ann. Civ. Stat., is broad and discretionary, yet it is not unlimited and does not extend beyond the granting of temporary and necessary relief. Rudasill v. Rudasill, Tex. Civ. App.,
Mrs. Wallace urges that attorneys’ fees for representing the wife are necessaries and it has been so held. Moore v. Moore, Tex. Civ. App.,
This being an interlocutory order from which no appeal will lie the petitiоner’s only remedy is by way of a writ of mandamus. In similar situations we have issued writs of mandamus where it appears that the trial judge in entering interlocutory orders has abused his discretion. Crane et al. v. Hon. Bert H. Tunks,
Mrs. Wallace lays considerable stress upon the faсt that this is a rather large community estate and her attorney estimates the value of the same to be approximately a million and a quarter dollars. But that affords no justification for unauthorized allowances. The record does disclose, however, that this estate is now indebted to the extend of some $400,000.00 and it may not be amiss to observe that it may be quickly dissipated unless the proper procedures are followed.
The expense item of $1,300.00 comprises, according to Mr. Anderson, future deposition costs of $1,000.00 and $300.00 by way of travel expense. The order for these future expenses is based solely upon Mr. Anderson’s conclusion without any proof of necessity, but wholly speculative. The expense of taking depositions is an item of court costs and properly chargeable as such. Of course traveling expense is not chargeable as costs. If the same are taken and prompt payment becomes necessary provision therefor may be timely made.
*492 We hold that the order complained of in so far as attorneys’ fees and future expenses are concerned is unauthorized at law and void and that the trial judge in so entering the same has abused his discretion. We note that the enforсement of this order has been suspended pending our action on the application for this writ and we take it that the same will be rescinded in the light of our views herein expressed. Consequently we think that it will be unnecessary for the writ of mandamus to issue at this time.