Johnson v. Gerald

Decision Date15 June 1927
Docket Number5 Div. 979
PartiesJOHNSON et al. v. GERALD.
CourtAlabama Supreme Court

Rehearing Denied Oct. 20, 1927

Appeal from Circuit Court, Chilton County; George F. Smoot, Judge.

Bill for divorce by Mabel Hall Johnson against Arthur Johnson with intervention by Lawrence F. Gerald. From a decree for intervener, complainant and respondent appeal and apply for mandamus. Appeal dismissed; mandamus granted.

A.B Foster, of Birmingham, and L.H. Ellis, of Columbiana, for appellee and respondent.

THOMAS J.

Mandamus is the process to review interlocutory orders fixing temporary allowances of the wife in divorce suits. Brady v. Brady, 144 Ala. 414, 39 So. 237; Ex parte Edwards 183 Ala. 659, 62 So. 775; Ex parte Jackson, 212 Ala. 496, 103 So. 558; Ex parte Hilton, 213 Ala. 573, 105 So. 647; Rogers v. Rogers (Ala.Sup.) 110 So. 141; Ex parte Wood (Ala.Sup.) 110 So. 409; Ex parte Tower Mfg. Co., 103 Ala. 415, 15 So. 836.

The petition of complainant shows, among other things, that there was a bill by the wife for divorce, and to represent her in that behalf she employed counsel who discharged for her valuable services in that suit--filed the bill, procured the order of reference to the register to ascertain "temporary alimony and solicitor's fees," prepared for and examined witnesses on the reference, and the respective allowances made by the register were duly reported to the court, and to which exceptions were taken and filed. Before decision on the register's report of date of November 22, 1926, after said report, respondent in the divorce suit filed his answer of date of November 30, 1926, and after submission on the exception to the report of November 27 and 28, 1926. And a few weeks thereafter (date of December 17, 1926), the respondent in the instant petition rendered a decree upon the register's report and the exceptions thereto and made the respective allowances to complainant which will be later considered.

It is further averred in the petition for mandamus that the parties to the divorce suit became reconciled and resumed their relations as husband and wife, and complainant's attorney was so advised and not to proceed further in the case, whereupon that attorney filed his petition in said court, praying that he be allowed "to intervene in said divorce suit." Respondent in that suit and petition demurred to the petition, and said complainant wife and respondent husband filed in the cause their answer asserting their reconciliation, and the wife as complainant asked for a dismissal of the suit, all orders, references, decrees, and judgments therein and requested the register to "enter on the minutes of the court an order of dismissal at the cost of complainant," and it is averred in the petition for mandamus that the register refused so to do. It is further averred that, therefore, it became the duty of the judge to have such order, requested by complainant, made and entered. It is further averred that "as judge thereof, having failed and refused to have such order of dismissal entered, did undertake to make and enter in said cause an order or decree overruling the demurrer filed by petitioner, Arthur Johnson, and allowing said" attorney to intervene in said cause; that he did so intervene, and said parties objected to such intervention and further proceedings, and without waiving objection the husband and wife filed an answer to the petition of intervention. The husband and wife objected to further proceedings and called attention to the wife's application to dismiss her suit. The court proceeded to take testimony on that petition, refused to enter a decree dismissing said cause, and decreed that intervener recover of respondent in the divorce case the sum indicated, with the costs of the petition for intervention. It is further alleged in the petition for mandamus that the allowance was excessive, that appeal is taken by both parties to the suit for divorce.

It may be well that we here inquire of the nature of the attorney's right in the premises. It is by way of contract with the wife. Farrell v. Betts & Betts, 16 Ala.App. 668, 81 So. 188; Bell v. Bell, 214 Ala. 573, 108 So. 375, 45 A.L.R. 935.

The case of Bell v. Bell, supra, is very like the instant controversy, with the exception that in the former the wife applied for dismissal before a decree allowing her, as complainant, solicitor's fees; in the latter the reference allowing such fee had been had and reported, there was exception taken, and the court had allowed the fees reported. This was an allowance to the wife. Quaere, will reconciliation defeat the right to enforce the award when the wife requests that it be dismissed? It was held in Bell's Case that allowance of attorney's fees to wife suing for divorce and alimony is solely for the wife's benefit, and proceeding therefor must be in her name, and her attorney's right to fee is derivative and does not arise if the wife by her act cuts off claim thereto, and not until order allowing suit money at the husband's expense is made on proper hearing does attorney's equity arise to have it applied in payment of his services. Public policy forbids reopening of grounds of divorce after reconciliation for purpose of allowing attorney's fees against the husband. In the absence of contract, statute, or recognized ground of equity, there is no inherent right to have attorneys' fees paid by opposing side. Attorney cannot render service to wife in divorce suit on faith of having the husband pay for it except on conditions authorizing allowance thereof, among which is possibility of reconciliation. When allowance for attorney's fees has been awarded, it is still subject to the court's control to be reduced or increased as the case develops. Where the wife suing for divorce filed formal notice of reconciliation and abandonment of suit and disclaimed any demand for an allowance, her attorney was without authority thereafter to proceed in her name to execute a reference for allowance of temporary alimony and counsel fees. And in Bell's Case it was declared that the wife's application to dismiss her suit should have been acceded to, and that, the register so failing to enter dismissal, it became the duty of the court to cause the same to be entered.

The foregoing result is in harmony with our earlier cases (Pearson and Wife v. Darrington, 32 Ala. 227, 255), that solicitor's fees in such suits were regarded as a part of her temporary alimony, allowed as such, and as being necessary for the maintenance of her suit. Rast v. Rast, 113 Ala. 319, 21 So. 34; Jeter v. Jeter, 36 Ala. 392; Johnson v. Johnson, 195 Ala. 641, 71 So. 415. That is, that the allowance was made to the complainant wife "as a part of her alimony, and not to or for the benefit of her solicitors," was the effect of the decision and authorities collected in Farrell v. Betts & Betts, 16 Ala.App. 668, 81 So. 188.

If the solicitor had no lien by statute on the suit or the allowances made in money, he is without remedy. There is no implied contract relation between him and the husband. His contract with the wife cannot be insisted upon by way of recognized independent equity and enforced by intervention in the divorce suit against the protests, pleading, and due request for discontinuance or dismissal by the wife. No other result can follow after the repeated announcements of this court that the allowance to a wife as solicitor's fee is made as a part of her alimony.

Her right to dismiss is unqualified or has been so regarded by this court. Bell v. Bell, 214 Ala. 573, 108 So. 375, 45 A.L.R. 935. It is provided by statute that in any suit, before answer or cross-bill is filed, the complainant may, on application, dismiss the suit; and after answer or cross-bill is filed the complainant may apply to the register and dismiss the suit; and the register must enter the order on the minutes and give due notice to parties in adverse interest or attorneys of record, who may show cause against dismissal. Code of 1923, § 6555. The general rule is declared to be that a complainant can dismiss a bill whenever desired, with the exception that when a defendant has acquired rights duly presented by cross-bill. Ex parte Jones, 133 Ala. 212, 32 So. 643; Ex parte Conradi, 210 Ala. 213, 217, 97 So. 569. So the statute was construed in Bell v. Bell, 214 Ala. 573, 576, 108 So. 375, 45 A.L.R. 935.

Complainant in petition for intervention insists that when the decree of court upon the register's report, of date of December 17, 1926, was for money, thereafter the solicitor had a lien on the decree as his agreed compensation for services rendered the wife as per the contract, or the reasonable value of his services. Harton v. Amason, 195 Ala. 594, 599, 71 So. 180; Higley v. White, 102 Ala. 604, 15 So. 141; Denson v. Ala. F. & I. Co., 198 Ala. 383, 73 So. 525. These cases are under attorneys' lien statute and were defining the attorney's lien on pending suits eventuating in the right of recovery of money or property. They are inapplicable to a divorce suit when an allowance is made to the wife. We believe that the lien of such suit and allowances provided by statute is foreign to the legislative intent in enacting the statute (section 6261 et seq., Code of 1923) and the construction placed on the statute by this court. Authorities are collected in Dent v. Foy, 214 Ala. 243, 107 So. 210, and Denson v. Ala. F. & I. Co., 198 Ala. 383, 73 So. 525.

Counsel say of the right of the intervener, in his effort to collect his compensation out of the money judgment, as follows:

"We think that admitting the rule, as a general proposition, that a complainant may dismiss a bill, yet where other parties have a right involved therein which they are proceeding to enforce, such right
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