Burnham v. Tizard

• Decision Date: 06 May 1891
• Parties: BURNHAM v. TIZARD.
• Court: Nebraska Supreme Court

31 Neb. 781

48 N.W. 823

BURNHAM

v.TIZARD.

Supreme Court of Nebraska.

May 6, 1891.

Syllabus by the Court.

Section 12, c. 25, Comp. St., authorizes the court in a divorce suit “to require the husband to pay any sum necessary to enable the wife to carry on or defend the suit during its pendency.” Held, that the remedy here given for attorney's fees for the wife is exclusive, and that the attorney cannot afterwards maintain an action against the husband for fees in addition to those allowed by the court and paid.

Error to district court, Douglas county; WAKELEY, Judge.Savage, Morris & Davis, for plaintiff in error.

Lake, Hamilton & Maxwell, for defendant in error.

PER CURIAM.

This is an action for services alleged to have been performed by the plaintiff as an attorney for the wife of the defendant in defending her in an action for divorce. A demurrer to the petition was sustained in the county court, and also in the district court, and the action dismissed. There is the following stipulation of facts in the record: “It is hereby agreed and stipulated by and between the parties hereto that the alleged legal services for which this action is brought were rendered to the wife of this defendant in error, in a divorce proceeding then pending in this court, wherein said Richard Tizard was plaintiff, and his wife was defendant, commenced in April, 1887, and tried at the May term, 1888, when judgment was rendered against the plaintiff, and his petition dismissed, at his costs; and that pending said divorce proceedings, and before the trial of said cause, application by the plaintiff in error herein, as the attorney of said wife, was made to the trial court in that suit for alimony, suit money, and attorney's fees; whereupon, on the 23d day of February, 1888, the court awarded $25 per month for alimony pendente lite, $25 suit money, and $100 attorney's fees; and that all of said amounts were promptly paid by the said Richard Tizard; and that no other or further application for an additional allowance was made, pending said divorce suit, by the said defendant wife, or by her said attorney, or by any other person in her behalf.” Section 12, c. 25, Comp. St., provides that “in every suit brought, either for a divorce or for separation, the court may, in its discretion, require the husband to pay any sum necessary to enable the wife to carry on or defend the suit during its pendency, and it may decree such costs against either party, and award...