Bord v. Stubbs

• Decision Date: 22 December 1899
• Citation: 54 S.W. 633
• Parties: BORD v. STUBBS et al.
• Court: Texas Court of Appeals

54 S.W. 633

BORD v. STUBBS et al.

Court of Civil Appeals of Texas.

December 22, 1899.

Appeal from Galveston county court; Morgan M. Mann, Judge.

Action by James B. and Charles J. Stubbs against Rex Bord. From a judgment for plaintiffs, defendant appeals. Reversed.

Harris & Harris, for appellant. R. T. Wheeler, for appellees.

GARRETT, C. J.

The appellees brought this suit in a justice's court in Galveston county to recover of appellant upon the following account: "To legal services rendered in divorce proceedings, suit for partition, custody of children, advice, etc., in the matters in controversy between Rex Bord and Laura Bord, his wife, of the reasonable value, as agreed on, of $200." On trial in the justice's court, judgment was rendered in favor of defendant. On appeal to the county court the case was tried by a jury, resulting in a verdict and judgment for the appellees for the full amount of their account.

The first question raised on appeal is the right of an attorney at law to maintain an independent action against the husband for legal services rendered the wife in divorce proceedings against him. There is no special provision made in our divorce statutes for the payment of such fee by the husband, but we think that it might be recovered in an action as for necessaries furnished the wife, under Rev. St. art. 2970. This has been so decided by the court of civil appeals for the Fourth district in the case of Ceccato v. Deutschman, 47 S. W. 739, a case directly in point. The principle is also announced in the case of McClelland v. McClelland, 37 S. W. 350, by the court of civil appeals at Austin, in a suit for divorce, where an allowance was made. While the authorities throughout this country are conflicting, we are of the opinion that the decisions above cited are right in principle, and should be sustained, and that counsel for the wife in a divorce proceeding should be allowed to recover, in an independent action against the husband, a reasonable fee for services in a divorce suit, when the grounds of the divorce were probably true, and there was reasonable cause for bringing the suit, and the suit was brought in good faith. 2 Bish. Mar. & Div. § 388 et seq. The action in this case was for an agreed fee for services in divorce proceedings, but plaintiffs could only recover a reasonable fee. It was error to admit evidence to show service rendered in the prosecution of a suit for aggravated assault upon the wife, and it seems that such an action cannot be maintained. Id. § 391.

The judgment of the court below, however, must be reversed for the admission of incompetent and irrelevant testimony. In order to sustain the action, the evidence should be confined to proof of the probable grounds for divorce, and reasonable cause to believe that they existed. Hearsay evidence is not admissible for that purpose. The depositions of Mrs. Atchison and Mrs. Schaeffer are full of hearsay and much irrelevant matter. The defendant moved to strike these depositions out, because it was impossible to separate the illegal evidence from that that was admissible. We think that this motion should have been sustained, and the plaintiffs required to retake the depositions, or produce the witnesses before the court. We shall not undertake...