Howard v. La Coste
Citation | 270 S.W. 181 |
Decision Date | 27 December 1924 |
Docket Number | (No. 1157.)<SMALL><SUP>*</SUP></SMALL> |
Parties | HOWARD et al. v. LA COSTE. |
Court | Texas Court of Appeals |
Appeal from Jefferson County Court; C. N. Ellis, Judge.
Suit by B. B. Howard and others against John La Coste. From a judgment for defendant, plaintiffs appeal. Reversed and rendered.
Keen & McNeill, of Beaumont, for appellants.
Reynolds & O'Neill, of Port Arthur, for appellee.
O'QUINN, J.
Appellants sued appellee in the county court at law of Jefferson county, Tex., to recover the sum of $380, the alleged value of services rendered by them and expenses incurred as attorneys at law in representing appellee's wife as defendant in a suit brought by appellee against her in the district court of Jefferson county, Tex., for divorce, wherein judgment was rendered against appellee denying him the divorce. In their petition appellants alleged:
Appellee answered by general demurrer and general denial.
The case was tried before the court without a jury, and judgment rendered that appellants take nothing by their suit, from which judgment they have appealed.
The case is before us upon an agreed statement of the pleadings and the facts. The pleadings are as set out above. The facts are that on November 19, 1921, appellee, John La Coste, filed suit against his wife, Marie La Coste, in the district court of Jefferson county, Tex., for divorce, and for grounds of divorce alleged:
Marie La Coste resided in New Orleans, La., and when she was served with citation in the divorce suit she employed B. B. Howard, one of the appellants, to resist said suit and to defend same. By and through her attorneys, appellants, she filed answer containing the following:
Said answer was duly verified by Marie La Coste. The divorce suit was tried before the court and judgment entered denying the divorce and dismissing the suit. From this judgment there was no appeal. Later, May 21, 1923, appellants, Marie La Coste's attorneys, filed this suit against John La Coste to recover their fees for representing Mrs. La Coste in the divorce suit.
John and Marie La Coste were separated in 1912, at New Orleans, La. Marie La Coste sued appellee for divorce in the district court of Orleans parish, La., and on April 9, 1913, she obtained a decree of separation from bed and board from John La Coste, and in said decree of separation the property rights of the parties were settled and the permanent care, custody, and control of their minor children were given to Marie La Coste. Since said decree of separation, John La Coste and Marie La Coste have lived separately and apart; the said Marie La Coste residing in New Orleans, La., and John La Coste at Port Arthur, Tex. During practically all the time since the said separation John La Coste has contributed monthly in money to the support of said minor children approximately the sum of $50. He did not employ or agree to pay appellants any fee for their services in representing Marie La Coste. Under the laws of the state of Louisiana, when one party sues the other for divorce and a decree of separation from bed and board is entered, the party in whose favor same is entered may have said decree made permanent and the divorce absolute after one year from the date of the decree, by appearing before the court and showing that there has been no reconciliation, and after two years from the date of such decree, the offending party may, in same manner, have same made permanent. Neither party had made application for the decree to be made permanent at the date of the judgment in appellee's suit for divorce, January 22, 1923. The petition and answer of the parties in the divorce suit of appellee against his wife appear as evidence in the agreed statement of facts in this case. Appellants are and were practicing attorneys and were employed by Marie La Coste to represent her in resisting the granting of the divorce sued for by her husband, and performed such services and defended said suit, and it was shown that their services were reasonably worth the sum of $150, and that B. B. Howard, one of the appellants, incurred actual and necessary expenses in attending the trial and prosecuting the defense in the sum of $35.
The only point raised by appellants that requires discussion is that the court erred in not rendering judgment for appellants in the sum of $185, shown to be a reasonable attorney's fee and the actual expenses incurred; appellants contending that the facts show legal charges for necessary professional services rendered appellee's wife against her husband, John La Coste.
Although John La Coste and his wife had been separated for nearly 10 years at the time he brought his divorce suit, and although his wife had obtained a divorce from his bed and board in the state of Louisiana some eight years before the filing of said suit, nevertheless, in law, the limited divorce decree having never been made final, she was still his wife, and he so admitted by the allegation in his petition in his said divorce proceeding. Therefore, the question is: Was he liable for the attorneys' fees of his wife in defending the divorce suit?
There has been some conflict in the authorities upon the question whether attorneys' fees in divorce cases are properly chargeable as a part of the court costs which may be decreed in the discretion of the court, and a like conflict upon the question whether attorneys' fees incurred by the wife in the prosecution or defense of such suits looking to her protection are necessaries for which the husband would be liable. We have no statute controlling this question. It has been held that such attorneys' fees cannot be claimed as costs of suit. McClelland v. McClelland (Tex. Civ. App.) 37 S. W. 359. But the rule seems to be well established that where the wife brings or defends a suit for divorce in good faith and upon probable cause, reasonable attorneys' fees incurred by her are properly chargeable against the husband, upon the ground that such fees are necessary for the protection of a right given her by law. McClelland v. McClelland (Tex. Civ. App.) 37 S. W. 350; Ceccato v. Deutschman, 19 Tex. Civ. App. 434, 47 S. W. 739; Bord v. Stubbs, 22 Tex. Civ. App. 242, 54 S. W. 633; Dodd v. Hein, 26 Tex. Civ. App. 164, ...
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Roberts v. Roberts, 13628.
...a necessary expense incurred in protection of a right given her by law; Speer, Marital Rights, 3d Ed., sec. 638, p. 796; Howard v. LaCoste, Tex.Civ.App., 270 S. W. 181; recoverable either in the main action by the wife or independently by her attorneys upon appropriate allegations and proof......
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Robbins v. Robbins, 13864.
...S.W. 698; Hemman v. Hemman, Tex.Civ.App., 251 S.W. 313; Hughes v. Hughes, Tex. Civ.App., 259 S.W. 180, writ dismissed; Howard v. La Coste, Tex.Civ.App., 270 S.W. 181, writ dismissed; Jeter v. Jeter, Tex.Civ.App., 281 S.W. By his brief, defendant points out that the trial court improperly ta......
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