Clyde v. Peavy

• Decision Date: 08 March 1888
• Citation: 36 N.W. 883,74 Iowa 47
• Parties: CLYDE v. PEAVY.
• Court: Iowa Supreme Court

74 Iowa 47

36 N.W. 883

CLYDE

v.PEAVY.

Supreme Court of Iowa.

March 8, 1888.

Appeal from district court, Mitchell county; G. W. RUDDICK, Judge.

Plaintiff, J. F. Clyde, brought this action against H. M. Peavy to recover for services rendered as an attorney in an action for divorce brought by this defendant against his wife, and in which action the services in question were rendered on behalf of the wife. Trial by jury, and verdict and judgment for plaintiff. Defendant, Peavy, appeals.J. M. Moody and M. M. Brown, for appellant.

W. L. Eaton and J. F. Clyde, for appellee.

ROTHROCK, J.

1. The action for divorce in which the legal services in question were rendered was commenced at the October term, 1885, of the district court of Mitchell county. The petition for divorce charged the wife of the defendant with the crime of adultery, and with such cruel and inhuman treatment as to endanger his life. The defendant's wife filed a cross-petition in which she claimed a divorce upon the ground of cruel and inhuman treatment. The cause was continued, and the venue thereof was changed to the circuit court, where a full trial was had, and on the 4th day of September, 1886, a final decree was rendered by which both the petition for divorce and the cross-bill were dismissed as not being sustained by the proof. The evidence shows that when the action for a divorce was commenced, the defendant therein employed W. L. Eaton as counsel, and that in connection with such employment she authorized said Eaton to employ assistant counsel if in the progress of the case he should be of the opinion assistance was necessary. In pursuance of this authority, Eaton associated the plaintiff herein with him, and they together conducted the litigation in behalf of the wife. The principle has been established in this state that in actions for divorce the husband is liable to the wife's attorney for reasonable fees earned in conducting the litigation in behalf of the wife. This cannot be regarded as an open question. Porter v. Briggs, 38 Iowa, 166;Preston v. Johnson, 65 Iowa, 285, 21 N. W. Rep. 606. The defendant conceded this general proposition; but in his answer denies that the plaintiff was in the employ of the defendant's wife, and that if he performed any legal services they were wholly unnecessary; that his assistance was not required, and that therefore the defendant is not liable therefor. This was a good defense to the action. But the evidence upon the trial shows without conflict that the services rendered by the plaintiff were necessary, and the objection made that the plaintiff was not employed by a contract made by the wife in her own person appears to us to be without merit. It was clearly within her power to employ her leading counsel, and authorize him to determine whether assistance was necessary; and if he should be of opinion that it was, to select some one to act as co-counsel with him. And the proof shows that she consulted and advised with the plaintiff and Eaton during the litigation,...