Dallas v. Dallas

• Decision Date: 31 July 1936
• Docket Number: 43377.
• Citation: 268 N.W. 516,222 Iowa 42
• Parties: DALLAS v. DALLAS et al.
• Court: Iowa Supreme Court

268 N.W. 516

222 Iowa 42

DALLAS v. DALLAS et al.

No. 43377.

Supreme Court of Iowa.

July 31, 1936

Appeal from District Court, Muscatine County; John E. Purcell Judge.

Action in equity to annul an order entered in a prior divorce action, taxing $25 for defendant's attorney's fees. The order was annulled and proceedings thereunder enjoined. Defendant has appealed; the trial judge having certified that the case is one in which an appeal should be allowed.

Affirmed.

J. G Kammerer, of Muscatine, for appellant.

J. F Devitt, of Muscatine, for appellee.

RICHARDS, Justice.

In this equity action before us on appeal, plaintiff sought to annul an order that had been entered by the same court in a divorce action previously pending therein. In the divorce action William D. Dallas, appellee herein, was plaintiff, and Hazel Denton Dallas, appellant, was defendant. The order taxed against plaintiff $25 for defendant's attorney's fees. Plaintiff claims this order was void, and bases his contention on two propositions: First, plaintiff says that the presiding judge was without jurisdiction because a motion for change of place of trial had been filed by plaintiff, supported by affidavit that the presiding judge was so prejudiced against plaintiff that he could not obtain a fair trial, upon which motion the court had entered an order of continuance to a certain date " in order to afford plaintiff an opportunity to secure attendance of another judge with the condition that if another judge cannot be secured, the presiding judge at the term aforesaid will hear the motion." The other ground of plaintiff's contention is that prior to the time the court taxed the attorney fees the plaintiff had fully dismissed the divorce action in which the fees were taxed. Upon a hearing of the case before us, the district court found that the order in question had been entered after an affidavit of prejudice had been filed against the presiding judge, and after the plaintiff's case had been dismissed. The record fully warranted this finding. The court further held that at the time the order was made the court had no jurisdiction over plaintiff and no power or jurisdiction to enter the order, and decreed that the same be canceled and held for naught. We find no error in the conclusion reached by the district court.

The record discloses that the defendant in the divorce action, relying on the provisions of section 10478, Code 1931, had filed an application for temporary alimony and attorney fees to enable her to defend the action. Nothing in nature of a cross-petition for divorce or separate maintenance was filed by defendant. Before the submission of said motion, the plaintiff dismissed the case. Thereafter, the defendant's attorney orally moved the court to tax as costs against plaintiff an attorney fee of $25 to compensate defendant's attorney for services theretofore rendered in the case. This oral motion was sustained and the court entered the order involved in this appeal, taxing as costs against plaintiff $25 for defendant's attorney's fees.

We are of the opinion that in the equity action now before us on appeal, the district court correctly held that after the divorce action had been dismissed there was in the court no power to order taxed to plaintiff the attorney fees in question. The dismissal of the divorce action terminated the jurisdiction of the court therein. After the dismissal there was nothing pending before the court upon which its jurisdiction could rest, Kiser v. Crawford, 182 Iowa 1249, 166 N.W. 577; Bardes v. Hutchinson, 113 Iowa 610, 85 N.W. 797, although upon dismissal a judgment for costs could be rendered against the plaintiff so dismissing this being by reason of express provisions of section 11633, Code 1931. But in entering a judgment for costs upon dismissal there was in section 10478 no warrant to allow attorney fees because the power conferred by section 10478 is limited to the making of an allowance to enable the party benefited thereby to defend the issues tendered in a divorce action or to prosecute such action. Obviously after dismissal there was no such action to be defended or prosecuted for which allowance of attorney fees could be made. Nor in fact does the order...