Hamilton v. Salisbury

CourtCourt of Appeal of Missouri (US)
Writing for the CourtJohnson
Citation133 Mo. App. 718,114 S.W. 563
Decision Date07 December 1908
PartiesHAMILTON v. SALISBURY et al.
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...

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10 practice notes
  • Mallory v. Ice & Supply Co., No. 26332.
    • United States
    • United States State Supreme Court of Missouri
    • May 18, 1928
    ...should have so held in a peremptory instruction. O'Hara v. Gas Co., 244 Mo. 409; McGrath v. St. Louis, 215 Mo. 213; Kipp v. Oyster, 133 Mo. App. 718; Press v. Penny & Gentles, 242 Mo. 98. (c) The work being done was not inherently dangerous. The defendant ice company is not liable for the i......
  • Hogsett v. Hogsett, No. 24560
    • United States
    • Missouri Court of Appeals
    • October 3, 1966
    ...allowances cannot be made in any other proceeding. Fiorella v. Fiorella, 241 Mo.App. 180, 240 S.W.2d 147, 151; Hamilton v. Salisbury, 133 Mo.App. 718, 114 S.W. 563, 564; Isbell v. Weiss, 60 Mo.App. 54, 56; Knebel v. Knebel, Mo.App., 189 S.W.2d 464, 466. Moreover, by the clear terms of Sec. ......
  • Rogers v. Daniel, Case Number: 11231
    • United States
    • Supreme Court of Oklahoma
    • July 31, 1923
    ...606; Yeiser v. Lowe (Iowa) 69 N.W. 847; Gordon v. Brackey (Iowa) 121 N.W. 83; Isbell v. Weiss, 60 Mo. App. 54; Hamilton v. Salisbury (Mo.) 114 S.W. 563; Kincheloe v. Merriman (Ark.) 16 S.W. 578. It is true that in Iowa the two cases above cited from that state have been expressly overruled ......
  • Wolf v. Friedman, No. 69-156
    • United States
    • United States State Supreme Court of Ohio
    • November 26, 1969
    ...Bank v. Orkin (1967), 223 Ga. 385, 156 S.E.2d 86; Moran v. Montz (1914), 175 Mo.App. 360, 162 S.W. 323; Hamilton v. Salisbury (1908), 133 Mo.App. 718, 114 S.W. 563; Thigpen v. Maddox & Giffin (1937), 56 Ga.App. 464, 192 S.E. 925; Stone v. Conkle (1939), 31 Cal.App.2d 348, 88 P.2d 197. See M......
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10 cases
  • Mallory v. Ice & Supply Co., No. 26332.
    • United States
    • United States State Supreme Court of Missouri
    • May 18, 1928
    ...should have so held in a peremptory instruction. O'Hara v. Gas Co., 244 Mo. 409; McGrath v. St. Louis, 215 Mo. 213; Kipp v. Oyster, 133 Mo. App. 718; Press v. Penny & Gentles, 242 Mo. 98. (c) The work being done was not inherently dangerous. The defendant ice company is not liable for the i......
  • Hogsett v. Hogsett, No. 24560
    • United States
    • Missouri Court of Appeals
    • October 3, 1966
    ...allowances cannot be made in any other proceeding. Fiorella v. Fiorella, 241 Mo.App. 180, 240 S.W.2d 147, 151; Hamilton v. Salisbury, 133 Mo.App. 718, 114 S.W. 563, 564; Isbell v. Weiss, 60 Mo.App. 54, 56; Knebel v. Knebel, Mo.App., 189 S.W.2d 464, 466. Moreover, by the clear terms of Sec. ......
  • Rogers v. Daniel, Case Number: 11231
    • United States
    • Supreme Court of Oklahoma
    • July 31, 1923
    ...606; Yeiser v. Lowe (Iowa) 69 N.W. 847; Gordon v. Brackey (Iowa) 121 N.W. 83; Isbell v. Weiss, 60 Mo. App. 54; Hamilton v. Salisbury (Mo.) 114 S.W. 563; Kincheloe v. Merriman (Ark.) 16 S.W. 578. It is true that in Iowa the two cases above cited from that state have been expressly overruled ......
  • Wolf v. Friedman, No. 69-156
    • United States
    • United States State Supreme Court of Ohio
    • November 26, 1969
    ...Bank v. Orkin (1967), 223 Ga. 385, 156 S.E.2d 86; Moran v. Montz (1914), 175 Mo.App. 360, 162 S.W. 323; Hamilton v. Salisbury (1908), 133 Mo.App. 718, 114 S.W. 563; Thigpen v. Maddox & Giffin (1937), 56 Ga.App. 464, 192 S.E. 925; Stone v. Conkle (1939), 31 Cal.App.2d 348, 88 P.2d 197. See M......
  • Request a trial to view additional results

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