Johnson v. Johnson, 33723.

• Decision Date: 19 May 1944
• Docket Number: No. 33723.,33723.
• Citation: 217 Minn. 436,14 N.W.2d 617
• Parties: JOHNSON v. JOHNSON.
• Court: Minnesota Supreme Court

14 N.W.2d 617

217 Minn. 436

JOHNSON v. JOHNSON.

No. 33723.

Supreme Court of Minnesota.

May 19, 1944.

Rehearing Denied June 9, 1944.

Appeal from District Court, Hennepin County; William A. Anderson, Judge.

Action for divorce by Marguerite Brooks Johnson against Chester W. Johnson, wherein LeRoy Bowen filed a motion to vacate the order dismissing the action and sealing the files and to adjudge an attorney's lien. From an order denying the motion, LeRoy Bowen appeals.

Affirmed.

Coursolle, Preus & Maag, of Minneapolis, for appellant.

Frank E. Clinite, John B. Halloran, and Chester W. Johnson, all of Minneapolis, for respondents.

HOLT, Commissioner.

Marguerite Brooks Johnson sued her husband, Chester W. Johnson, for an absolute divorce. The appellant was her attorney. Reconciliation followed, and the wife and husband stipulated to dismiss the suit, without costs to either party, but with prejudice. By order of court, the files in the action were sealed. All this was done without the knowledge of appellant. He thereafter petitioned the district court to vacate the order dismissing the action and sealing of the files and to adjudge an attorney's lien under the authority of Minn.St.1941, § 481.13, Mason St.1940 Supp. § 5695. The amount claimed by appellant was $10,000 for services and $85.56 for disbursements. Six different judges have filed orders touching appellant's rights. The final order denied his motion to vacate the order sealing the files and dismissing the divorce suit with prejudice, but without costs to either party. It is from this order that he appeals.

Since the early case of Wagner v. Wagner, 34 Minn. 441, 442, 26 N.W. 450, it is settled that when a suit for divorce is dismissed the authority of the court to grant attorney's fees or expenses of the divorce litigation is "at an end." There has been no decision of this court casting any doubt upon the correctness of the Wagner case. Beaulieu v. Beaulieu, 114 Minn. 511, 131 N. W. 481, merely holds that the parties, by resuming cohabitation while the divorce suit is pending, is not equivalent to a dismissal. In the case at bar there was a formal order of dismissal with prejudice. Brodsky v. Brodsky, 176 Minn. 198, 222 N. W. 931, cited by appellant, was a case where a divorce was granted and a fund was deposited in court for the wife. Of course, there the wife's attorney's lien could be impressed on that fund.

Appellant contends that the following cases from other jurisdictions authorize an adjudication in his favor, that is, an order vacating the order sealing the files and the order of dismissal: Taylor v. Taylor, 33 Idaho 445, 196 P. 211; Bovard v. Bovard, 233 Mo.App. 1019, 128 S.W.2d 274; Hampton v. Hampton, 85 Utah 338, 39 P.2d 703. The Idaho court takes a different view of divorce actions than did this court in Wagner v. Wagner. We still think that parties to a divorce suit are at liberty to dismiss the suit at any time before trial. In a divorce suit no property comes into the picture unless a divorce is granted; then incidental...