Lamy v. Catron

• Decision Date: 21 January 1890
• Parties: LAMY et al.v.CATRON et al.
• Court: New Mexico Supreme Court

5 N.M. 373

23 P. 773

LAMY et al.

v.CATRON et al.

Supreme Court of the Territory of New Mexico.

Jan. 21, 1890.

Error to district court, Santa Fe county; REEVES, Judge.

The district court, which is a court of equity as well as of common law, may, as an incident to the power to decree divorces, grant to the wife, upon a proper showing, pendente lite, temporary maintenance and allowance, and enforce payment of the same, against the husband, or his property, in the absence of a sufficient separate estate of the wife, or under such circumstances, may charge such maintenance and allowance for attorney's fees against any common property of the husband and wife, whether such property be under the control of the husband or wife.

Gildersleeve & Preston, for plaintiffs in error.

Catron, Knaebel & Clancy, for defendants in error.

LONG, C. J.

John B. Lamy and Mereedes Chaves de Lamy, plaintiffs in error in this court, filed in the district court of Santa Fe county their bill of complaint to review and set aside a decree rendered in said court on the 1st day of August, 1885, in a cause where-in Mercedes Chaves de Lamy was complainant, seeking a divorce, and John B. Lamy was defendant. Upon hearing the bill filed below by the plaintiffs in error here, who were complaints in the bill of review, the court dismissed the same. The plaintiffs in error contend that the court below should have sustained the bill of review, and bring this cause here to correct the error which it is alleged the court below committed in dismissing the bill of review.

It will be necessary to a proper understanding of the objections urged here to state with some detail the various steps taken in the original proceeding for divorce of Mercedes Chaves de Lamy v. John B. Lamy. The bill of complaint in that case was filed in the district court, and in December, 1879, an amended bill was filed, Thomas B. Catron appearing therein, by appointment of the court, as next friend. It was charged in the bill of complaint, among other things, that at the time of the marriage of the complainant Mercedes Chaves de Lamy with John B. Lamy she was possessed of the sum of $16,800 in money and property, which she inherited from her father, and that after her marriage she also inherited and received from her mother the sum of $27,000 in money and property, including a large amount of valuable real estate in Santa Fe. She further averred that, against her will, and over her remonstrance and objection, the defendant in said action, her husband, had reduced to his possession, and taken and converted, the whole of the said property, and the rents, profits, and issues of said real estate; that he had changed the form of much of the property, and was then claiming the whole of it absolutely as his own, and denying that she had any interest in the same; that he refused to give her possession or control of the whole or any part of the property, and had so managed the same as to materially lessen it in value; that at that time of his marriage, and at the time of bringing the action, he had no property of his own whatever, and that he had incumbered by liens a part of her property. For relief she asked to be decreed an absolute divorce; that the property be decreed free from said liens; that she be decreed to be the owner of the whole of the property; and that the same be restored to her. She also prayed that John B. Lamy should be required by decree to pay into court a sufficient sum of money to pay her solicitors, Messrs. Catron & Thornton, for their services, as such, in instituting and conducting the divorce suit, and to pay costs. John B. Lamy appeared to the action, and on the 20th day of April, by his solicitors, Messrs. R. H. Tompkins and C. H. Gildersleeve, filed answer, to which a replication was filed by complainants, and thus issue was joined. July 26, 1880, the cause was referred by the court to a master, with directions to take evidence and report. February 9, 1882, the master filed his report, showing therein that neither party had presented any witnesses for examination, and that he had not taken any evidence. Two days before this report by the master, John B. Lamy, then appearing by C. H. Gildersleeve, his solicitor, moved to dismiss the action for want of prosecution. It may be observed that at this state of the record the cause was pending in court on the bill, answer, and replication, with the motion of John B. Lamy to dismiss not yet acted upon, with Catron and Thornton yet appearing for the complainant, and C. H. Gildersleeve for the defendant. On the 21st day of February, 1882, the record recites: Catron & Thornton, solicitors for said complainant, filed their petition of interpleader. In it they allege their employment by Mrs. Lamy as her solicitors; they show the services rendered for her; charged that she agreed to pay them the sum of $5,000 out of her separate property, at the time in the control of her husband, in trust for her benefit; that such property was worth $40,000; that Mrs. Lamy and her husband settled their controversy, and that it was agreed that her husband should hold her property as her trustee on such settlement, and pay out of the same the said $5,000; that the services were of that value to her, and not paid. They ask that the cause be continued on the docket, a master be appointed to take proofs, and that their fees be decreed in the action. No further action was taken for nearly five months, when, on July 10th, the court ruled Mercedes Chaves de Lamy and John B. Lamy “to plead, answer, or demur to the petition of interpleader of said Catron and Thornton, on file herein, at or before the incoming of court on next Monday morning.” For designation only, as a matter of brevity in statement, the paper filed by Catron & Thornton will hereafter, in this opinion, be referred to as an interpleader, following in that respect, for designation, the name given by the court below to that paper. Two days after this rule was entered of record, July 12th, Catron & Thornton served C. H. Gildersleeve, as solicitor for defendant, with a copy of the interpleader. July 26th, neither John B. Lamy nor his wife appearing to the interpleader, and failing to respond to the rule “to plead, answer, or demur” thereto, it was decreed that the same be taken as confessed. On the 31st day of July, for the first time after the filing of the interpleader, John B. Lamy appeared, and then, by C. H. Gildersleeve, his solicitor, moved to set aside the decree pro confesso, the order of reference to a master made thereon, and to strike from the files the interpleader. Thus the cause remained, without any action whatever, either by the court or parties, until the 28th day of July, 1884, a period of over two years. The interpleader was filed during a term of court, and presumably in open court; yet John B. Lamy, with full opportunity to examine the record and files, permitted 140 days-nearly five months-to elapse without taking a single step to defend against the claim for solicitor's fees. He permitted 19 days to pass after the actual delivery of a copy of the interpleader to his solicitor, and court in session, before he took any step with respect to the interpleader. He did not then make to the court any complaint that he was not aware that the interpleader had been filed, or that he was ignorant of the fact that a rule to plead had been entered against him, or for want of service of a copy of the interpleader in time. The record does not disclose that any objection on the ground of irregularities of that character was made. Had objection on that ground been made at that time in the court below, the ruling there might have been different; but, as no such objection was presented for the consideration of the court below, it cannot be considered for the first time here, but must be held to be waived.

The ground of the motion to set aside the decree pro confesso, filed by John B. Lamy, is because “the court has no jurisdiction to entertain the consideration of the matters contained in said interpleader, nor grant any decree, order, or relief on the matters and facts therein stated and contained.” He did not object on the ground of irregularity, but attacked the power and jurisdiction of the court, as an incident to and a part of the cause, to ascertain and decree solicitors' fees for services rendered the wife in a divorce proceeding. The discussion of this point will appear more appropriately later on in this opinion. Two years passed after the motion by John B. Lamy to set aside the decree pro confesso was made, when, on the 28th day of July, 1884, the complainant in the divorce action filed in court her own affidavit as follows: “Affidavit of Complainant. Mercedes Chaves de Lamy v. John B. Lamy. Chancery. In the district court, Santa Fe county, territory of New Mexico. Mercedes Chaves de Lamy, being duly sworn, on her oath states that she is the complainant in the above-entitled cause, and at present residing in the city of Santa Fe, territory of New Mexico. That all matters of difference existing between herself and defendant, her husband, at the time of filing said bill of complaint, have been for the past three years fully settled and adjusted. That a reconciliation between herself and her husband has taken place, and she is now living with him again. That over two years ago she directed her attorneys in the above cause to dismiss said bill of complaint, and is greatly surprised to learn that her directions in the premises have been disregarded by them. Affiant states that she employed T. B. Catron as one of her counsel at the time said suit was brought, but made no arrangements with him then nor since whereby she was to pay or promised him any compensation for services rendered, or to be rendered, or that he was to receive from her any greater compensation than her other counsel, which was five hundred dollars, which she paid each to Wm....