Gosserand v. Monteleone
| Decision Date | 22 June 1925 |
| Docket Number | 27005 |
| Citation | 105 So. 356,159 La. 316 |
| Court | Louisiana Supreme Court |
| Parties | GOSSERAND v. MONTELEONE |
Rehearing Denied July 13, 1925
Appeal from Civil District Court, Parish of Orleans; E. K. Skinner Judge.
Suit by Louis H. Gosserand against Anthony V. Monteleone. Judgment of dismissal on an exception of no cause of action, and plaintiff appeals.
Judgment annulled, and case remanded.
Edward Rightor and E. V. Parham, both of New Orleans, for appellant.
A. D Danziger, of New Orleans (P. H. Stern, of New Orleans, of counsel), for appellee.
OPINION
The plaintiff appeals from a judgment dismissing his suit on an exception of no cause of action.
He is an attorney at law, and was employed by Mrs. Helen McCrady, wife of the defendant, Monteleone, to file and prosecute for her suit for separation from bed and board, to obtain alimony pending the said suit, and for a dissolution and liquidation of the community. The suit was instituted, an inventory of the community property was made, and a judgment for alimony was rendered in plaintiff's favor. She was dissatisfied with the amount allowed her, and prosecuted an appeal to this court. Pending the appeal a reconciliation between husband and wife was effected, which fact legally concluded the action for separation.
The present suit is brought by the attorney against the husband on a quantum meruit for services rendered the wife in her suit for separation.
The petition alleges that the allegations in the suit for separation could have been established, and that as long as the said Mrs. Monteleone desired to have her said suit against her husband prosecuted, petitioner was ready and willing to and did prosecute the said suit.
It is further alleged that petitioner is entitled to be paid by the defendant husband a just and reasonable fee for the said services performed by him for the said Mrs. Monteleone, the just and reasonable value of which said services is the sum of $ 5,000, being the amount which the said Mrs. Monteleone agreed to pay for petitioner's services at the time she employed him.
The sole question tendered by the exception, and which we are called upon to decide, is whether or not a husband, or the community of which he is head and master, can be held liable for the fees of counsel employed by the wife in a suit by her against her husband for separation from bed and board where such suit has failed or for any reason has not been carried to a successful termination.
The question is not entirely free from difficulty. There is no case to be found in the jurisprudence of the state exactly parallel, and in which the precise question here presented was considered.
Counsel for defendant relies for support of his contention on Tucker v. Carlin, 14 La.Ann. 734, and Benedict v. Holmes, 104 La. 528, 29 So. 256.
The cases, while in some respects pertinent, are not decisive of the question presented in this case.
In the Tucker Case it appears that in a former suit there were mutual demands for divorce on the part of the husband and the wife, neither of whom was successful. The demand of each was rejected by a final judgment of this court. The attorney for the wife then brought suit for his services against both the husband and the wife. The demand as against the husband was rejected, the court holding that counsel employed by the wife must look to her separate estate and not to the husband or the community.
The theory on which the case was decided adversely to the claim for attorney fees was: (1) That the wife could not by contract bind the community, that authority being alone vested in the husband as head and master; and (2) that the attorney for the wife could not claim under a quasi contract on the ground that the wife, in instituting the divorce suit against her husband, had so managed the business of the community as a negotiorum gestor as it had been benefited thereby, because she acted directly against his will and intended to injure and destroy the community.
In the Benedict Case the wife was successful in her suit for separation from bed and board, and thereby dissolved and destroyed the community, but the court held that the services of the attorney employed by the wife in her suit for separation from bed and board should be paid by the husband as head and master of the community.
In the course of the opinion the court said:
The court in its opinion stated that the argument that was employed by the court in support of its rejection of the plaintiff's demand in the Tucker Case -- to the effect that, if the wife can be made responsible for the costs, in like manner she may be responsible for the services of her attorney rendered without contract -- supported the plaintiff's demand in the case then under consideration.
It will thus be seen that in the one case (Tucker) the court held that the husband was not liable for the attorney's fees, where the wife's claim to a separation was rejected by the final judgment of court, and in the other (Benedict) the husband was held liable where the wife succeeded in her demand for a separation and dissolution of the community.
So that we find from these two cases that if the wife attempts by suit and fails to destroy the community, the husband is not liable. While on the other hand, if she succeeds in putting an end to the community the husband is liable.
It is well to note that while in the Benedict Case the court referred to and quoted to some extent from the Tucker Case, the court did not hold in the Benedict Case that the attorney employed by the wife could not recover for his services where the suit for separation was unsuccessful.
It was made quite clear, however, that the continued existence of the community precluded the wife from claiming from the husband or from the community fees paid or agreed to be paid her counsel for prosecuting her suit for separation, for the reason that the wife has no right of action against the husband during the community to recover a debt. But it was not held that the attorney of the wife had no right of action against the husband for services rendered the wife.
On the contrary, the court, in referring to the Tucker Case and the case of Delpit v. Young, 52 La.Ann. 1071, 27 So. 583, said:
"We considered the fact of the continued...
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Tanner v. Tanner, 42020
...in the Tucker case and those of the Benedict matter. And this conflict was recognized and resolved in Gosserand v. Monteleone, 159 La. 316, 105 So. 356, 358, 42 A.L.R. 310, the court there electing to follow the theory of the Benedict case, namely, that the wife's right to employ counsel in......
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Hamby v. Pye
... ... Baientolila, 152 La. 716, 94 So. 366, 25 A.L.R. 348; ... Grimstad v. Johnson, 61 Mont. 18, 201 P. 314, 25 ... A.L.R. 351, 354, note; Gosserand v. Monteleone, 159 ... La. 316, 105 So. 356, 42 A.L.R. 310, ... ...
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Wellons v. Zambrano, Civ. A. No. 81-1054-A.
...and that the lawyer may recover for past services actually performed only upon a quantum meruit basis.2 Gosserand v. Monteleone, 159 La. 316, 105 So. 356, 42 A.L.R. 310 (1925); Cain v. Employers Casualty Co., 236 La. 1085, 110 So.2d 108 (1959); Schiro v. Macaluso, 13 La.App. 88, 126 So. 244......
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Gallagher v. Gallagher
... ... Leger, 133 So.2d 897, La.App., 3d Cir. 1961 (writ denied). See, also: Tanner v. Tanner, 229 La. 399, 86 So.2d 80 (1956) (on rehearing); Gosserand v. Monteleone, 159 La. 316, 105 So. 356, 42 A.L.R. 310 (1925); Id., 164 La. 397, 113 So. 889 (1927); Shockley v. Shockley, 141 So.2d 64, La.App., 2d ... ...