Hilker v. Hilker

• Decision Date: 03 November 1899
• Citation: 55 N.E. 81,153 Ind. 425
• Parties: HILKER v. HILKER.
• Court: Indiana Supreme Court

153 Ind. 425

55 N.E. 81

HILKER

v.HILKER.

Supreme Court of Indiana.

Nov. 3, 1899.

Appeal from superior court, Allen county; C. M. Dawson, Judge.

Suit for divorce by William F. Hilker against Emma C. Hilker. From a judgment in favor of defendant, plaintiff appeals. Affirmed.

Samuel M. Hench, for appellant. Henry Colerick, for appellee.

HADLEY, J.

Suit for divorce. Judgment against the plaintiff, and he appeals.

The plaintiff alleges in his petition, among other things, as constituting cruel and inhuman treatment, intemperance, neglect of household duties, abuse of plaintiff's children by a former wife, and that the defendant has sought and received the attention of young and single men in the most imprudent manner, visiting them in their rooms when she had no business to see them, showing in her manner a total disregard of public sentiment and private morality, which was a continual cause of the deepest mortification and shame to the plaintiff; that she has received the visits of certain men at unreasonable hours of the night, and at times when she knew her husband would be absent; and that her conduct at such times had furnished sufficient evidence to satisfy any reasonable mind that she is morally unworthy to be the wife of the plaintiff. Pending the petition, appellee filed her application, supported by affidavit, for a temporary allowance, under section 1054, Burns' Rev. St. 1894, to enable her to make an efficient preparation for defense. Over the objection and exception of appellant, the court entered an interlocutory order that he pay into court, for the use of defendant for the purposes prayed for by her, the sum of $50. Subsequently and before the order was complied with, the parties entered into a written agreement as follows: “The plaintiff and defendant to the above cause hereby agree to the following facts: (1) The plaintiff agrees to pay to the defendant the sum of fifty dollars ($50.00), which sum was allowed the defendant as a temporary allowance by said court on the 3d day of February, 1897. (2) The defendant agrees to withdraw her petition and affidavit for temporary allowance filed by her in said court June 1, 1897, and not to renew the same before said case is tried. (3) The plaintiff agrees to withdraw his motion and affidavit for a change of venue from Allen county, and agrees to try said case in said court, in said county. (4) This agreement is to be filed in said court, when in session, with Hon. C. M. Dawson, judge, on the bench. Witness our hands this 23d day of June, A. D. 1897. S. M. Hench, Atty. for Plaintiff. Bittenger & Clapham, Attys. for Defendant.” September 28, 1897, the cause came to trial, and, after the evidence was closed, and cause continued for argument, the defendant, by her attorneys, filed a motion, supported by the affidavit of one of them, William E. Clapham, in effect that they had received no compensation whatever for their services in the case, and that the defendant was unable to pay any; that the “court enter an order in this cause requiring plaintiff to pay into court for said defendant, to use in paying said counsel, such a sum as the court deems just and right.” Whereupon the plaintiff filed his motion, supported by affidavit, to strike from the files the affidavit of William E. Clapham, asking for an allowance for the attorneys for the defendant in this cause, for the reason that said application and motion were in violation of the written agreement of June 23, 1897. The motion to strike out was overruled, and the court rendered final judgment that the plaintiff take nothing by his suit; that the defendant recover of the plaintiff her costs; and it is ordered that the plaintiff pay to Henry Colerick, attorney for defendant, $50, and to Bittenger & Clapham, attorneys for defendant, $100, “as attorneys for defending this cause on behalf of the defendant.” Proper exceptions were saved. The overruling of plaintiff's motion to strike the affidavit of Clapham from the files, and the entry of the final judgment order that plaintiff pay defendant's attorney's fees, present the first question arising in this appeal.

There is no strength in appellant's contention that the motion for an allowance of attorney's fees is in violation of the written agreement of June 23d. That agreement purports only to relate to temporary allowances pending the action to enable the wife to prepare her defense, and not to allowances in the final decree. Both these powers are conferred upon the court by section 1054, supra, and the purposes to be attained by them are separate and distinct. This court said, in Harrell v. Harrell, 39 Ind. 187: “The above section contains two separate and distinct propositions. The one is that, ‘pending a petition for a divorce, the court, or the judge thereof in vacation, may make, and by attachment enforce, such orders for the disposition of the persons, the property, the children of the parties as may be deemed right and proper, and such orders relative to the expenses of such suit as will insure to the wife an efficient preparation of her case, and a fair and impartial trial thereof.’ The other proposition is that, ‘on decreeing a divorce in favor of the wife, or refusing one on the application of the husband, the court shall, by order, to be enforced by attachment, require the husband to pay all reasonable expenses of the wife in the prosecution or defense of the petition when such divorce has been so granted or refused.’ The first allowance provided for has to be made while the action is pending, and only to such an amount ‘as shall insure to the wife an efficient preparation of her case, and a fair and impartial trial thereof.’ The second allowance is to be made after a divorce has been decreed in favor of the wife, or refused on the application of the husband, and shall be for a sum sufficient ‘to pay all reasonable expenses of the wife in the prosecution or defense of the petition.’ It is made the imperative duty of the court, in decreeing a divorce to the wife, or...