Grimstad v. Johnson

• Decision Date: 10 October 1921
• Docket Number: 4434.
• Citation: 201 P. 314,61 Mont. 18
• Parties: GRIMSTAD ET AL. v. JOHNSON ET AL.
• Court: Montana Supreme Court

201 P. 314

61 Mont. 18

GRIMSTAD ET AL. v. JOHNSON ET AL.

No. 4434.

Supreme Court of Montana

October 10, 1921

Appeal from District Court, Yellowstone County; Charles A. Taylor Judge.

Action by O. K. Grimstad and another against Clara E. Johnson and another. Demurrer by defendant John A. Johnson sustained, and plaintiffs appeal. Affirmed.

Grimstad & Brown, of Billings, for appellants.

Nichols & Wilson, of Billings, for respondents.

BRANTLY C.J.

On October 1, 1918, Clara E. Johnson, through the plaintiffs her attorneys, brought an action in the district court of Yellowstone county against John A. Johnson, her husband, for a divorce on the ground of extreme cruelty. Upon filing the complaint, she made an application for an order requiring the defendant to show why he should not pay her alimony pending the action, including suit money and counsel fees. The application disclosed that she was in ill health and without means to support herself or to pay counsel for services necessary to enable her to prosecute the action. It further disclosed that her husband was possessed of considerable property from which he was receiving a monthly income of approximately $500. Before the hearing was had under the order, and without consulting her attorneys, she became reconciled to her husband and resumed marital relations with him. Later she directed the plaintiffs to dismiss the action and neither she nor her husband appeared at the time set for hearing under the order. Thereafter plaintiffs brought this action against John A. Johnson, the husband, joining the wife as codefendant, to recover $300, the amount of the fees which the latter had requested the court to allow in her application, alleging that the divorce action had been brought in good faith and that this sum was reasonable compensation for their services rendered therein. To this complaint the defendant John A. Johnson interposed his separate general demurrer. After consideration the court sustained it, and, the plaintiffs standing on their complaint, rendered judgment in favor of this defendant for his costs. Plaintiffs have appealed.

The single question presented for decision is whether, under any recognized rule or principle of law, the plaintiffs are entitled to maintain this action.

It is not entirely clear from the argument found in the brief submitted by plaintiffs whether their theory is that the husband is made liable under section 3677 of the Revised Codes, or is liable on the ground that the wife had implied authority under section 3724 to employ counsel upon his credit as a necessary. Section 3677, so far as it is pertinent here, reads as follows:

"While an action for divorce is pending the court or judge may in its or his discretion require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action. * * * The final judgment in such action may be enforced by the court by such order or orders as in its discretion it may from time to time deem necessary, and such order or orders may be varied, altered, or revoked at the discretion of the court."

We shall not stop to inquire what power the courts in this jurisdiction would have had at common law in divorce cases to require the husband to pay the fees of counsel employed by the wife. The statute declares the extent of the power and, in our opinion, is exclusive; for "in this state there is no common law in any case where the law is declared by the Code or the statute" (section 8060, Rev. Codes), and "the Code establishes the law of this state respecting the subjects to which it relates" (section 8061). It requires but a casual reading of section 3677, supra, to ascertain that the object of the Legislature in enacting it was to give the courts discretionary power, to be exercised during the pendency of the action upon a proper showing by the wife in an application for that purpose, to compel the husband to provide the means necessary to enable her to prosecute or defend the action. In other words, the power in this behalf conferred by the statute is only ancillary to, or an incident of, an action for divorce. This renders the conclusion necessary that when the main power conferred by this section has ceased to be operative the ancillary or incidental power also ceases to be operative and cannot be invoked by the wife's counsel in an independent action to charge the husband.

Upon examination of the decided cases in other states which have the same or similar statutory provisions, we find that their courts generally agree that counsel fees may be allowed only while the divorce action is pending. Loveren v Loveren, 100 Cal. 493, 35 P. 87; Burnham v. Tizard, 31 Neb. 781, 48 N.W. 823; Clarke v. Burke, 65 Wis. 359, 27 N.W. 22, 56 Am. Rep. 631; Isbell v. Weiss, 60 Mo.App. 54; Meaher v. Mitchell, 112 Me. 416, 92 A. 492,...