Hamilton v. Salisbury
| Citation | 114 S.W. 563,133 Mo.App. 718 |
| Parties | JOHN N. HAMILTON, Appellant, v. ED E. SALISBURY et ux., Respondents |
| Decision Date | 07 December 1908 |
| Court | Kansas Court of Appeals |
Appeal from Randolph Circuit Court.--Hon. Alexander H. Waller Judge.
Judgment affirmed.
Martin & Terrill and John W. Hamilton for appellant.
(1) It was necessary for the wife to defend the action for divorce begun by her husband, that she might, thereby, defend her character and good name, also, protect her rights in the property that had been accumulated since her marriage to her said husband, as the result of their joint efforts, which property was all in the name of her husband. R. S. 1899, sec 2929. (2) Under the facts in this case the legal services rendered by plaintiff, in defending the wife's good name and character, relieve her distress, promote her comfort of body and mind and protect her marital rights in the property of the husband in the suit for divorce brought against her by her husband, were necessaries within the meaning of the law for which services the husband is liable. Conant v. Burnham, 133 Mass. 503; Porter v. Briggs, 38 Ia. 166; Clyde v. Peavy, 74 Ia. 47, 36 N.W. 883; Sherwin v. Maben, 78 Ia. 467, 43 N.W. 292; Preston v. Dobbin, 65 Ia. 285; McCurley v. Stockbridge, 62 Md. 422; Sprayberry v. Merck, 30 Ga. 81; Stocken v. Patrick, 29 L. T. Exch. (N. S.) 507. (3) The facts in this case being, the wife defending an action against her for divorce brought by her husband is materially different from those in the case of Isbell v. Weiss, as in that case the wife sued the husband for divorce, consequently, the holding of the St. Louis Court of Appeals should not control in the case at bar. Porter v. Briggs, supra. (4) This suit being for necessaries furnished the wife the plaintiff is not relegated solely to the court in which the divorce proceedings were had, but cannot recover in a separate proceeding. Gossett v. Patten, 23 Kan. 340; Fulhart v. Fulhart, 109 Mo.App. 709, 83 S.W. 541. (5) Instruction number 4, given for plaintiff by the court of its own motion, is not a correct statement of the law under the facts and evidence in this case.
Aubrey R. Hammett for respondent.
(1) Is the husband liable in an independent action for the wife's attorney fee? We think not. In other words, "An attorney cannot sue a husband directly for services rendered his wife in a divorce suit in this State. Waters v. Waters, 49 Mo. 386; Isbell v. Weiss, 60 Mo.App. 54; Woodward v. Woodward, 84 Mo.App. 328; Fullhart v. Fullhart, 109 Mo.App. 705.
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 fifty dollars. 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, Millie Salisbury, employed the plaintiff to defend her in the divorce suit, if you further find from the evidence that by the terms of that agreement the plaintiff was to look to Ed Salisbury for his fee and not to Millie Salisbury, then your verdict must be for the defendant."
Thus instructed, the jury returned a verdict in favor of both defendants. Plaintiff appealed.
The first question to engage our attention is whether the facts adduced by plaintiff disclose a liability on the part of the husband for his wife's attorney's fees which may be enforced by the attorney, not in the divorce suit, but in an independent action. Here is...
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