Maddy v. Prevulsky
| Decision Date | 09 January 1917 |
| Docket Number | 30920 |
| Citation | 160 N.W. 762,178 Iowa 1091 |
| Parties | C. C. MADDY, Appellant, v. CHARLES PREVULSKY, Appellee |
| Court | Iowa Supreme Court |
Appeal from Wapello District Court.--C. W. VERMILION, Judge.
ACTION to recover for services rendered a wife in a divorce proceeding against her husband. Judgment for the defendant in the court below. Plaintiff appeals.
Reversed.
Lowenberg & Maddy and Jaques & Jaques, for appellant.
J. J Smith, for appellee.
Plaintiff brings this action to recover for services rendered the defendant's wife in a divorce proceeding instituted by her against her husband. A demurrer was interposed to the petition and sustained. Plaintiff appeals.
The petition to which the demurrer was sustained alleges that, on the 12th day of June, 1914, defendant's wife, Belle Prevulsky, employed a firm of attorneys to institute an action for divorce; that before the bringing of the suit she frequently consulted with them, and thereafter, on her request, they prepared a petition asking a divorce, and praying for an attachment against the property of the defendant; that subsequently, an amendment to this petition was prepared and filed, asking for an injunction restraining the defendant from going to the home occupied by his wife; that said petition was presented to a judge of the district court, and an attachment procured against the property of the defendant, and an injunction issued restraining the defendant from molesting or interfering with his wife, or going to the home she then occupied; that the attachment and injunction were both served on the defendant, and property of the defendant attached.
Plaintiff further says that, in the divorce proceedings instituted by the defendant's wife against him, she made the following allegations: That, since her marriage, and especially during the last year, he (the defendant) has been guilty of such repeated acts of cruel and inhuman treatment towards her as to endanger her life; that he has repeatedly struck, slapped and whipped her, and daily called her vile names, and wrongfully accused her of unchastity; that, for the last month preceding the filing of the petition, he has not spoken a kind word to her, and within the last day or so, without any provocation, has slapped her on the side of the face, struck her with his fist and knocked her down; that the attorneys who instituted the suit consulted with neighbors and friends of the defendant's wife before and after the filing of the petition for the divorce; that these persons were familiar with the facts set forth in the petition, and corroborated the allegations thereof as to the cruel and inhuman treatment; that the plaintiff wife had, at the time said petition was filed, a good action for divorce against her husband, and was entitled to a divorce from him on the grounds set out in her petition.
She further alleged, by amendment to her petition, that, since the filing of the original petition, he continued his abuse of her, frequently cursed her, called her vile names, and ordered her to leave the house and not come back, and refused to give her any clothes or any money; that she had no place to go and no place to stay. All the allegations of the petition were sworn to by the plaintiff wife before the same was filed. Plaintiff further says that the defendant's wife was absolutely without a home and without the necessaries of life, or any means of securing the same, and would have been thrown out on the streets a pauper, if it had not been for the action so taken to protect her.
Plaintiff further says that the services so rendered were necessary for the protection of the property and person of the wife, and to procure her peace and quiet, and to secure her a home; that the firm of attorneys instituting the suit devoted their best efforts in the matter hereinbefore referred to, and rendered all the service for her, both in preparing and filing the pleadings and in securing the attachment and the restraining order; that subsequently, the said Belle Prevulsky and the defendant, for the fraudulent purpose of defrauding the said firm out of the fees due them for services rendered in the said cause, caused said suit to be dismissed and said attachment released; that they conspired together to defraud said attorneys in doing so; that said account for services rendered was duly assigned to this plaintiff by the said firm of lawyers, and he is now the owner of the same.
To this petition the defendant demurred, alleging: (1) That the allegations of the petition failed to show any agreement or contract, express or implied, by which the defendant became bound to pay for the services alleged; (2) that the petition shows that the services were rendered in a proceeding voluntarily commenced by the plaintiff's wife. This demurrer was submitted and sustained, and plaintiff's petition dismissed at his costs. From this, plaintiff appeals.
The disposition of this case involves the consideration of the following propositions: (1) Does the petition upon its face show that the attorneys who instituted the divorce proceedings acted in good faith, and with probable grounds for believing that the institution of such suit was necessary for the protection of the wife? (2) Does it affirmatively appear from the petition that the facts alleged as a basis for the divorce, and upon which the right to the relief prayed for rested, show the action to be reasonably necessary for the protection of the wife? (3) Are the facts alleged by the wife in her petition for a divorce sufficient, if proven, to justify a court in granting the relief prayed for?
It is a fundamental proposition of law that a wife is entitled to support from her...
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