Bordeaux v. Bordeaux
| Decision Date | 01 February 1904 |
| Parties | BORDEAUX v. BORDEAUX. |
| Court | Montana Supreme Court |
Commissioners' Opinion. Appeal from District Court, Silver Bow County; Wm Clancy, Judge.
Action for divorce by John R. Bordeaux against Ella F. Bordeaux. From an order allowing defendant counsel fees, plaintiff appeals. Reversed.
Stapleton & Stapleton, B. S. Thresher, and Breen & Mackel, for appellant.
Jno. J McHatton, Jesse B. Roote, and W. A. Clark, Jr., for respondent.
On January 28, 1899, plaintiff brought an action against defendant for a divorce. The trial was had in August, 1901 and resulted in a decree in favor of the plaintiff. Pending the action, and upon application filed by the defendant on the 28th day of February, 1899, the court ordered the plaintiff to pay the defendant certain alimony and expenses of the suit and $600 for her attorneys "as a retainer." The order further provided: On August 17, 1901, which was prior to the completion of the trial, defendant made a further application for attorney's fees and certain expenses. The court allowed the expenses, but denied the application for attorney's fees, and made the following recital in the order: "Reserving the right to allow attorney's fees after the trial." After the entry of the decree, and on or about September 28, 1901, defendant made a further application for an allowance sufficient to pay costs of the trial remaining unpaid; the cost of preparing and presenting motion for a new trial; to pay attorney's fees "for services rendered in the case, including the trial thereof, and to pay them for services to be rendered in preparing, presenting, and serving a motion for a new trial"; and to pay sufficient to support the defendant during the pendency of the action. The application then recited: "This motion is made and based upon the affidavit of the defendant and the affidavits of John J. McHatton, and petition heretofore filed on behalf of the defendant herein with reference to the matter of alimony and counsel fees, and an allowance to the defendant for the defense of this action and the prosecution of her counterclaim; also upon the former order of the court made herein and defendant's bill of exceptions filed September 24, 1901, and upon the affidavits filed herewith, copies of which are herewith served upon the plaintiff; and will be heard upon the same and such other affidavits or oral testimony as may be introduced upon the hearing of the same." This motion came on for hearing on November 9, 1901. The defendant offered proof as to the reasonable value of attorney's fees for the trial of the case and for the preparation and presentation of the motion for a new trial, and also offered proof that the cost of the transcript of the testimony for use in the preparation of a statement on motion for a new trial or bill of exceptions would be $325. Proof was also offered that defendant's counsel had given notice of motion for a new trial. The court made an order upon hearing this application, allowing the $325 for a transcript of the testimony, and as to the attorney's fees ordered as follows: "That the defendant be, and she is hereby, allowed the additional sum of one thousand dollars for services of her counsel, McHatton & Cotter, performed from the time of their appearance as counsel herein and for services by them in preparing and presenting motion for a new trial in this court and upon appeal in said cause in the Supreme Court of this state." From this order plaintiff appeals.
It will be noticed that attorney's fees were allowed by this order for three purposes, viz.: (1) For past services in conducting the trial of the case; (2) for services to be rendered in preparing and presenting the motion for a new trial; and, (3) for services to be rendered in the preparation and presentation of an appeal from the judgment.
It seems necessary to a final decision of this appeal that the court first decide under what circumstances and for what purpose a district court might make an order allowing costs expenses, and attorney's fees after the entry of final judgment. Section 191 of the Civil Code provides, among other things: "While an action for divorce is pending the court or judge may, in its or his discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action." This is the only statutory authority giving power to a court to grant alimony and expenses to a wife. Section 1895 of the Code of Civil Procedure provides: "An action is deemed to be pending from the time of its commencement until its final determination upon appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied." Section 1730 of the Code of Civil Procedure provides that: "Whenever an appeal is perfected, as provided in the preceding sections of this chapter, it stays all further proceedings in the court below upon the judgment of order appealed from, or upon the matters embraced therein, *** but the court below may proceed upon any other matter embraced in the action and not affected by the order appealed from." All the sections above quoted are referred to in the opinion of this court on an original application made by defendant to this court to compel plaintiff to pay attorney's fees on the appeal, costs for preparing transcript and printing brief in the Supreme Court, and maintenance pending the appeal. Bordeaux v. Bordeaux, 26 Mont. 533, 69 P. 103. This court said: "Whether the district court or judge has power, pending appeal, to require the husband to pay to the wife money necessary to prosecute or defend against an appeal in a divorce case is a question reserved as unnecessary to be decided." The court then decided that in the exercise...
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