Hillman v. Hillman

• Decision Date: 28 April 1906
• Citation: 42 Wash. 595,85 P. 61
• Parties: HILLMAN v. HILLMAN et al.
• Court: Washington Supreme Court

85 P. 61

42 Wash. 595

HILLMAN v. HILLMAN et al.

Supreme Court of Washington

April 28, 1906

Appeal from Superior Court, King County; Arthur E. Griffin, Judge.

Action by Bessie Olive Hillman against Clarence D. Hillman and another. The suit was voluntarily dismissed by plaintiff, and S. H. Steele and another, as attorneys for plaintiff intervened and were awarded judgment against both plaintiff and defendant for their fees, from which judgment both plaintiff and defendants in the original proceeding appeal. Reversed, with instructions to dismiss the action.

Fred'k R. Burch, for appellants.

Blaine Tucker & Hyland and Wm. Hickman Moore, for respondents.

FULLERTON J.

The appellants Bessie Olive Hillman and Clarence D. Hillman are husband and wife, and the appellant Homer L. Hillman is the brother and business partner of Clarence D. Hillman. The respondents, Steele & Brown, are attorneys at law. On March 21, 1904, the appellant Bessie Olive Hillman began an action for divorce and for a partition of the community property against her husband, joining her husband's brother as a party defendant because of the business relations existing between him and her husband. The respondents, Steele & Brown appeared as attorneys for Mrs. Hillman. A preliminary restraining order was applied for and issued, and an application made for temporary alimony and suit money including attorney's fees. Pending this latter application the Hillmans condoned their differences, and a stipulation was entered into for a dismissal of the action. This stipulation was signed by Mrs. Hillman, but not by her attorneys, and, when presented to the court, was opposed by them on the ground that they had an interest in the action to the extent of their attorney's fees, and that the parties were without power to dismiss the action without their consent. The court took this view of the case, allowed the attorneys to file a petition in intervention for their fees and the costs they had advanced, and ordered a hearing thereon, at the conclusion of which it entered a judgment against the appellants Bessie Olive and Clarence D. Hillman in favor of the attorneys for $1,000 as attorney's fees and $9 they had advanced as costs, together with the costs of the proceedings.

The warrant for this judgment is thought to be found in section 5722 of the Code (Ballinger's Ann. Codes & St.) which provides that the court in an action for divorce brought by the wife may 'require the husband to pay all reasonable expenses of the wife in the prosecution or defense of the action, when such divorce is granted or refused, and give judgment therefor.' But this section contemplates a judgment in favor of the wife, one running in her name, and is not authority for the...