Courtney v. Courtney
| Decision Date | 18 March 1892 |
| Docket Number | 523 |
| Parties | COURTNEY v. COURTNEY |
| Court | Indiana Appellate Court |
From the Switzerland Circuit Court.
Judgment affirmed.
J. T Ellis and G. S. Pleasants, for appellant.
J. A Works and F. M. Griffith, for appellee.
America Courtney, by Works and Griffith, her attorneys, brought an action in the Switzerland Circuit Court against Andrew J. Courtney for divorce.
Pending the action, the plaintiff applied for a temporary allowance for her support, showing in her application that she had a good cause for divorce, and that she was entirely destitute of means of support pending the litigation. An order was entered requiring the defendant to pay her a fixed sum, which was complied with. During a vacation of the court, and while the cause was still undisposed of, the parties became reconciled, and began living together as husband and wife. Shortly thereafter the plaintiff notified her said attorneys that their services were no longer required, and, afterwards, she went to the clerk's office in person and placed on file a written dismissal of the action, which was duly entered in the order book by the clerk. Before the commencement of the following term of court, Works and Griffith filed a written motion in the clerk's office to set aside the dismissal, and caused both parties to be duly notified of the filing and pendency of the motion. This motion showed that said attorneys had been employed by the plaintiff to prosecute the action, and had performed services in that connection of the value of $ 55, for which they had not been paid; that the plaintiff was wholly unable to pay them, and such services were performed with the understanding that they should be paid out of allowances by the court therefor against the defendant pending the suit, or finally, in the event the petition was successfully prosecuted. They asked that an order be entered requiring the defendant to pay for such services before the final dismissal of the cause.
The defendant appeared and filed a demurrer to the motion, which was overruled, and such further proceedings were had that the court entered an order in the cause requiring the defendant to pay said attorneys the sum of $ 55, and from this order the defendant appeals.
It is first insisted on behalf of appellant that the dismissal in vacation effectually disposed of the case, and that the court had no jurisdiction of it thereafter.
Section 334, R. S. 1881, provides that the plaintiff may dismiss his action in vacation by filing a writing with the clerk to that effect, and the clerk shall enter such dismissal in the order book, and the court shall enter judgment accordingly at the next term.
It seems to have been the intention of the Legislature to make the judgment of the court the consummating act of dismissal, and to leave in the court a general administrative power over the case until the final judgment such as is inherent in every court of general jurisdiction in pending proceedings. In this view, courts not only have the authority, under such circumstances, but it is their duty upon...
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