Kaltwasser v. Kaltwasser, 27022.

• Decision Date: 15 October 1946
• Docket Number: No. 27022.,27022.
• Citation: 197 S.W.2d 102
• Parties: KALTWASSER v. KALTWASSER et al.
• Court: Missouri Court of Appeals

197 S.W.2d 102

KALTWASSER v. KALTWASSER et al.

No. 27022.

St. Louis Court of Appeals. Missouri.

October 15, 1946.

As Amended on Denial of Rehearing November 19, 1946.

Appeal from Circuit Court, St. Louis County; Fred E. Mueller, Judge.

"Not to be reported in State Reports."

Action by Esther A. Kaltwasser against Raymond A. Kaltwasser for divorce. Fred Armstrong, as claimant in the matter of fees as attorney for plaintiff, appeals.

Appeal dismissed.

Aubrey B. Hamilton, of St. Louis, for appellant.

Dubail & Judge, of St. Louis, for plaintiff.

Fred J. Hoffmeister, of St. Louis, for defendant-respondent.

ANDERSON, Judge.

In this case the plaintiff, Esther A. Kaltwasser, brought a suit for divorce against her husband, Raymond A. Kaltwasser. At the time of the bringing of the action, Fred Armstrong, Esquire, a member of the St. Louis Bar, represented plaintiff as her attorney. Thereafter, and prior to the date on which the cause was set for hearing on the merits, the plaintiff discharged Mr. Armstrong and employed other counsel. On May 28, 1945, the cause came on for hearing, at which time counsel for the defendant informed the court that the parties had reached an agreement with reference to a property settlement; that plaintiff had dismissed Mr. Armstrong; and that in the settlement agreement defendant had agreed to pay Mr. Armstrong's fee subject to a future determination by the court as to the amount of the said fee. Thereupon Mr. Armstrong stated that in the letter which he received from his client, plaintiff stated that she discharged him, but did not undertake by said letter to pay his fee, and, therefore, he refused to accept the letter as eliminating him from the case. He also, at that time, stated that he had information which indicated "that any agreement between the parties may have been entered into under duress of defendant by plaintiff." On application of defendant's counsel, the cause was continued until June 1, 1945.

On that day, the following stipulation, signed by Fred Armstrong, as attorney for plaintiff, and by Fred J. Hoffmeister, as attorney for defendant, was filed in said cause; "It is hereby stipulated by and between the parties hereto that the matter of an allowance to plaintiff from defendant for costs, litigation expenses and attorney's fees need not be taken up by motion but shall be heard and submitted to the Court in connection with the hearing of the case on its merits."

On that same date, after some discussion between the court and Mr. Hoffmeister, Mr. Armstrong, and Mr. Dubail, who then appeared for plaintiff, it was decided that the cause should proceed to trial on the merits; and, that the court would retain jurisdiction of the matter of attorney's fees, would hear testimony, and would make a finding on that issue at a later date. Mr. Dubail, acting as attorney for plaintiff, then filed an amended petition. Defendant withdrew the cross-bill which he theretofore had filed, and the cause was heard on said amended petition and answer thereto, and resulted in a decree in favor of plaintiff.

On June 29, 1945, the matter of the allowance of attorney's fees came on for hearing. Mr. Armstrong, who appeared by counsel, introduced a great deal of evidence on the subject, and asked for an allowance of $7,500. At the conclusion of the hearing, the matter was taken under advisement, and on October 17, 1945, the court entered the following order: "The motion of plaintiff concerning suit money and attorney's fees having been heretofore submitted to the Court and the Court having heard and considered said motion as well as all the evidence thereon and being now duly and fully advised of and concerning the premises doth find that plaintiff is entitled to an award of $750.00 as alimony in the nature of attorney's fees and that defendant is entitled to a credit against said award of $250.00 for money previously paid to plaintiff's attorney, Fred Armstrong, that there is a balance due and unpaid on said award of $500.00 and doth sustain said motion. It is therefore ordered, adjudged and decreed by the Court that plaintiff have and recover of defendant the said sum of $500.00 and the costs of the proceeding concerning suit money, excepting costs of issuance, service and returns of subpoenas for witnesses, on behalf of plaintiff on June 29, 1945, and the fees of said witnesses, such costs assessed against the plaintiff. Memorandum of Court containing findings of fact and conclusions of law filed."

On October 26, 1945, Mr. Armstrong filed a motion for new trial, combined with a motion for modification of the court's order, and a motion for modification of the findings of fact and...