Hamilton v. Salisbury

• Citation: 133 Mo. App. 718,114 S.W. 563
• Parties: HAMILTON v. SALISBURY et al.
• Decision Date: 07 December 1908
• Court: Court of Appeal of Missouri (US)

114 S.W. 563

133 Mo. App. 718

HAMILTON v. SALISBURY et al.

Kansas City Court of Appeals. Missouri.

December 7, 1908.

1. DIVORCE (§ 197)—WIFE'S ATTORNEY'S FEE —HUSBAND'S LIABILITY FOR.

A wife unjustly sued for divorce, and without means to pay counsel fees, could employ counsel at her husband's expense.

2. HUSBAND AND WIFE (§ 19)—"NECESSARIES" —COUNSEL FEES.

Protection of a wife's character in a suit against her by employing counsel is as much a necessary as food, etc., within the rule requiring one to provide his wife with necessaries suitable to their station in life.

For other definitions, see Words and Phrases, vol. 5, pp. 4693-4703.]

3. DIVORCE (§ 198) — WIFE'S ATTORNEY'S FEES —HUSBAND'S LIABILITY.

While a husband is liable for his wife's attorney's fees in defending an unjust divorce suit, the liability is enforceable only as alimony, and will not sustain an independent suit.

4. DIVORCE (§ 197)—WIFE'S ATTORNEY'S FEES —EFFECT OF DISMISSAL.

Dismissal of a divorce suit against a wife did not affect the husband's liability for her attorney's fees, the attorney having the right, with or without her consent, to have the dismissal set aside for the allowance of his demand at any time during the term at which the dismissal was entered.

5. DIVORCE (§ 197)—WIFE'S ATTORNEY'S FEE —LIABILITY.

A wife is not liable for fees of an attorney employed to defend a divorce suit against her, which was dismissed, if she was without means and it was agreed that he should look to her alimony for compensation.

Appeal from Circuit Court, Randolph County; A. H. Waller, Judge.

Action by John N. Hamilton against Ed E. Salisbury and another. From a judgment of the circuit court on appeal from justice court, plaintiff appeals. Affirmed.

Martin & Terrill and John N. Hamilton, for appellant. Aubrey R. Hammett, for respondents.

JOHNSON, J.

Plaintiff, a lawyer, brought this action before a justice of the peace against defendants, who are husband and wife, to recover an attorney's fee for services rendered the wife in a divorce suit instituted by the husband. It appears from the evidence introduced at the trial in the circuit court that the husband had brought suit against his wife for a divorce on grounds derogatory to her character. She had no means of her own to defend the suit, and so told plaintiff at the time she invoked his services in her behalf. He explained that if she had a meritorious defense his fees would be allowed as alimony against the plaintiff, who had an estate of about $2,000 in value, and that his charge for his services to her would be $50. She then engaged the attorney, and gave him a statement of the facts of the case. The attorney advised her that she not only had a good defense, but was the aggrieved party, and, as such, was entitled to a decree in her favor. Thereupon she instructed him to prepare and file an answer and cross-petition, and also to make application for temporary alimony, including suit money. The attorney prepared all these papers, and was about to file them when husband and wife became reconciled, agreed to live together, and the husband caused the divorce suit to be dismissed. The attorney took no steps to have the order of dismissal set aside for the purpose of obtaining an allowance of his fee as suit money, but brought this, a separate, suit. The court peremptorily instructed the jury to find for the husband defendant, and on behalf of his wife instructed the jury "that even though they may find that the defendant, ...