86 Cal. 212 | Cal. | 1890
This is a suit for divorce, commenced by the husband. The wife filed a cross-complaint, and
Eespondent contends that the order is not appealable, but we think it must be held otherwise, on the authority of Sharon v. Sharon, 67 Cal. 185. With respect to the right of appeal, there would seem to be no distinction on principle between an order denying and an order granting alimony pendente lite. As to the merits of the case, it appears that the defendant has been represented by three attorneys, — Mr. Highton, Mr. Cooper, and Mr. McPike, —all of whom participated in the trial of the case and in the preliminary preparations. There was evidence that the services of Mr. Highton were worth from ten to fifteen thousand dollars, and those of the other two gentlemen from eight to ten thousand dollars; but it was shown that, about the time the litigation commenced, Mr. Highton and the defendant entered into a contract by which she agreed, in consideration of his services as her attorney, to pay him a certain percentage on the value of the property secured by her as a result of the litigation. In other words, his compensation was made entirely contingent on success. The existence of this agreement was a sufficient reason for refusing any allowance to pay Mr. Highton for his services as attorney. (Sharon v. Sharon, 75 Cal. 39-43.) The contract with Mr. Highton, it is true, differs in important particulars from the Tyler contract in the Sharon case, but there is no ground of distinction so far as concerns the right of defendant to receive an allowance from respondent for the purpose of paying Mr. Highton’s fees. By the terms of his agreement, he was bound to perform all the services he did perform as appellant’s attorney, and therefore she had no need of other means to secure their performance.
The question, therefore, for the superior court to decide in this case was, whether the services of Messrs. Cooper and McPike, in addition to those of Mr. Highton, were necessary; and if so, what was a proper sum to be allowed for their payment. Upon this question there was but slight, if any, conflict in the evidence. The preponderance of the proof certainly was, that the services of these gentlemen were not only important, but essential, and that Mr. Highton could not have conducted the case without the assistance of one or both of them. The respondent was represented throughout the proceedings by two able attorneys, and a part of the time by three, and it does not seem unreasonable to suppose that the appellant had need of more than one. If, therefore, the appellant had been applying for the first time for an allowance to pay counsel fees, we should feel constrained to hold that the order of the superior court was erroneous.
But there is evidence in the record that the respondent had, prior to this application, already paid to the appellant the sum of $2,450 to enable her to pay counsel, and that this was more than he had paid his own counsel, and more than half of all they were to be paid. Upon this evidence the superior court would have been justified in concluding that the defendant had received all that was necessary for the compensation of her attorneys, other than Mr. Highton, or, at least, all that was necessary to secure such additional counsel as she needed.
Order affirmed.
McFarland, J., Paterson, J., Fox, J., Thornton, J., and Works, J., concurred.