Clark v. Burke

• Decision Date: 23 February 1886
• Parties: CLARK AND ANOTHER v. BURKE.
• Court: Wisconsin Supreme Court

65 Wis. 359

27 N.W. 22

CLARK AND ANOTHER

v.BURKE.

Supreme Court of Wisconsin.

Filed February 23, 1886.

Appeal from county court, Milwaukee county.

This action was commenced in justice's court. The complaint was to the effect that July 31, 1885, the plaintiffs, as attorneys at law and copartners, and at the special instance and request of the defendant's wife, rendered professional services for her in and about procuring a divorce from the defendant on the ground of cruel and inhuman treatment, and an injunctional order prohibiting the defendant from using personal violence on his wife, and other work and professional services. The defendant answered by a general denial. Upon the trial before the justice the plaintiffs recovered judgment for $200 and costs, from which the defendant appealed to the county court. Upon the case coming on for trial in that court, the defendant demurred ore tenus. Thereupon the plaintiffs “asked leave to file an amended complaint, showing, among other things, that the services were rendered, and the action for divorce commenced, on the ground of cruel and inhuman treatment practiced by personal violence by the defendant upon his wife, and that it was necessary to bring the action for her protection.” The request was granted, with the statement by the judge: “I will allow the amendment to be made, because I do not consider that it makes any difference what the allegations in the complaint are.” The complaint was then amended by inserting additional allegations to the effect that the defendant, July 25, 1885, without cause or provocation, struck, beat, and ill treated his wife, and drove her from their home without any means or money, and without a place of habitation or shelter, and that for personal safety she was obliged to and did remain away from their home in a destitute condition until August 4, 1885, when the defendant caused a settlement to be made between himself and his wife without the knowledge or consent of the plaintiffs, and thereafter the wife refused to further prosecute the action, and dismissed it; that the services were necessary for the maintenance of the wife, and to secure her lawful rights, and to protect her from further personal injury, and were fully performed without negligence or delay. The court sustained the objection to the admission of any evidence, and excluded any testimony under the complaint as amended, and directed a verdict for the defendant, and from the judgment entered thereon the plaintiffs bring this appeal.Clarke & McAuliffe, for appellants.

Nath. Pereles & Sons and E. P. Smith, for respondent.

CASSODAY, J.

During the pendency of the action for divorce, it was competent for the court in that action to require the husband to pay such sums for the support of the wife, and to enable her to carry on the action, as in its discretion might have been deemed necessary and proper. Section 2361. This statute has frequently received a very liberal construction from this court. Upon such construction there can be no doubt but what the plaintiffs, as attorneys rendering services in good faith in prosecuting an action for divorce for a meritorious cause, might, in that action, have secured proper compensation notwithstanding any attempt to deprive them of it by a collusive settlement. But they would not have been entitled to such compensation, even in that action, as a matter of right, but only in the sound discretion of the court under all the circumstances. Expenses in prosecuting an action may under certain circumstances be wholly refused. Coad v. Coad, 40 Wis. 392;Friend v. Friend, post, 34. So, under other circumstances, the husband may be required to pay the expense of prosecution, even where the wife fails to maintain her action and her complaint is dismissed. Sumner v. Sumner, 54 Wis. 642;S. C. 12 N. W. Rep. 21. This results from the fact that there was no right to such expenses at common law. The courts of this state only have such powers in such actions as are given to them by statute. This has frequently been decided by this court. As we have seen, this power is discretionary. Accordingly it has been held that a claim for alimony is not the subject-matter of a separate suit, but only ancillary to or an incident of an action for divorce. Damon v. Damon, 28 Wis. 514. So it was said in Campbell v. Campbell, 37 Wis. 216, 217, that alimony is not an estate, but merely “an allowance for the nourishment of the wife, resting in discretion, variable and revocable. * * * It is not even separate property of the wife, which she can charge for her debts; * * * and even the payment of arrears of it rests in the discretion of the court granting it. * * * And so, by all the authorities, alimony is not only not an estate, but is a mere personal duty of the husband, which courts will control and enforce, from time to time, in their discretion,--in some sense a charge upon the husband personally, but in no sense a charge upon his estate, if he have one.” To the same effect is Bacon v. Bacon, 43 Wis. 203, 204. As “a claim for alimony is not the subject-matter of a separate suit, but only ancillary to or an incident of an action for divorce,” so it would seem that, under the section of the statute cited, a claim against the husband in behalf of the wife for money “to enable her to carry on or defend the action” of divorce is the mere incident of the divorce action, and hence not the subject-matter of a separate suit, whether...