Benedict v. Holmes
| Decision Date | 01 January 1900 |
| Docket Number | 13,450 |
| Citation | 29 So. 256,104 La. 528 |
| Court | Louisiana Supreme Court |
| Parties | W. S. BENEDICT ET AL. v. JOHN HOLMES |
Rehearing considered.
IN RE W. S. Benedict et al. Applying for Certiorari, or Writ of Review, to the Court of Appeals, Parish of Orleans, State of Louisiana.
Robert G. Dugue, for Petitioners.
Parkerson & Tobin, for Respondent.
The object of the suit in the respondent court was a recovery by the plaintiffs of the sum of two thousand dollars from the defendant, as the amount of their attorneys fees incurred by his wife in a suit for separation from bed and board and of property against him, and wherein she obtained a final judgment of this court on both of her demands; but the result of that suit was adverse to their claims and pretentions, the same having been disallowed by the respondent court on the ground that the wife had not the power, or legal right, to charge the legal community between her and her husband with the fees of counsel rendered in her behalf, and against his will as head and master of the community, but she is bound separately therefor.
It appears that in 1896, Mrs. Avaline Ober Holmes, wife, filed suit against her husband, John Holmes, for a separation from bed and board, and demanded a dissolution of the community.
The defendant answered, denying the plaintiff's allegations and demanded that her suit be dismissed; and by way of reconvention, he demanded a separation from bed and board from his wife and a liquidation and settlement of the community.
On the trial in the District Court, the demands of the plaintiff were rejected and those of the defendant sustained; but on the plaintiff's appeal her demands were sustained and those of defendant rejected at his cost.
After that decree became final, John Holmes and his wife made a compromise and extra-judicial liquidation and settlement of the judgment and of the community, by his making a payment to her of the sum of $ 6000.00, in consideration of which she waived, renounced and abandoned all of her interest in the community and in said judgment; and she subsequently removed from the State without the knowledge of the relators, and without making any payment for their services.
Thereupon the plaintiffs instituted their suit against the defendant John Holmes, husband, as head and master of the community, for the professional services they had rendered his wife; and on the trial in the District Court their demands were rejected and the respondent court affirmed its judgment.
The question for us to determine is whether the judgment thus rendered is in violation of law, and the settled jurisprudence of this court; or, in other words, is the fee of the wife's counsel in a suit successfully prosecuted against her husband for a separation from bed and board and the liquidation of the community, a legal charge against the community.
The respondent court relied, exclusively, upon Tucker vs. Carlin, 14 Ann. 744, as its authority for the rejection of the plaintiff's demands.
In that case, the plaintiff brought suit against husband and wife, jointly, for the recovery of his fee as attorney for the wife in her suit against the husband for a divorce, and in the District Court he obtained judgment against both; but on the husband's appeal that judgment was reversed.
The contention of the appellant was "that as the services were rendered to the wife alone, they ought to be paid for out of her separate estate, and not out of the community," whilst the appellee "contended that the debt was contracted during the existence of the community, and is a debt of the community."
The court held (1) that inasmuch as the law has given the husband, as head and master of the community, "absolute control over the debts and contracts of the community, and no one can pretend to a debt against the community * * * in virtue of contract, without his consent," the wife was without power to enter into a contract with the attorney for compensation for his professional services, and bind the community therefor; (2) that the plaintiff, as attorney of the wife, could not claim under a quasi-contract, on the ground that she had, in instituting a divorce suit against her husband, so managed the business of the community as a negotiorum gestor as it had been benefited thereby, "because she acted directly against his will and intended to injure and destroy the community."
But in the original case of Trowbridge vs. Carlin, 12 Ann. 882, the court found both parties in fault, and rejected the respective demands of both parties for a divorce.
Under such a state of facts, it may well be that the wife did not bind the community by her contract with her attorney; and that she could not make claim against the community for his services on the score that it had been benefited thereby -- her suit having failed of its purpose, and the community having remained intact; and the engagement having been made against the husband's will.
But relators' counsel contend that no such state of facts exists in the instant case, but an altogether different one. That the wife brought suit for a separation, and her husband resisted her demand and claimed a judgment of separation against her.
That the district judge rejected her demand and sustained his; but on the wife's appeal the terms of the decree were reversed, and judgment was pronounced in favor of the wife and against the husband, decreeing a separation and a dissolution of the community.
That the community having been judicially terminated through the instrumentality of her suit, the fees of her counsel are a legitimate charge against the community and must be liquidated by the husband out of its assets.
That proposition is strengthened by the fact that both the husband and wife made reciprocal demands for a separation, and dissolution of the community; and each, in turn, had obtained a judgment to that effect in his and her favor, respectively.
Both the husband and wife are conclusively bound by their judicial admissions, to the effect that a separation and dissolution of community were both desirable and necessary.
Had the wife withdrawn her demand after that of the husband had been filed, or had she prosecuted no appeal, there would have still existed a valid judgment of separation and dissolution of community at the husband's request against the wife under an authorization of the court.
Such being the case, it cannot be reasonably contended that the expense of the proceedings should be borne by the wife out of her separate estate.
It is quite true that the wife is without power to contract debts that will bind the community during its existence; and it is for that cause she does not become personally bound for community debts which have been contracted by the husband -- she being permitted to make a renunciation after the dissolution of the community.
Hence, the court held in Tucker vs. Carlin, that the husband was not bound either contractually or quasi-contractually, for the payment of the wife's attorney's fees in a divorce suit she had unsuccessfully prosecuted against him -- the community not having been dissolved.
The wife has a...
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