Purser & Magruder v. Baientolila
| Decision Date | 30 October 1922 |
| Docket Number | 25466 |
| Citation | 152 La. 716,94 So. 366 |
| Parties | PURSER & MAGRUDER et al. v. BAIENTOLILA. In re PURSER & MAGRUDER et al |
| Court | Louisiana Supreme Court |
Rehearing Denied November 27, 1922
Judgments of the district court and Court of Appeal annulled and reversed, and case remanded.
Purser & Magruder, of Amite, and John Fred Odom and H. K Strickland, both of Baton Rouge, for applicants.
Charles A. Holcombe and C. C. Bird, Jr., both of Baton Rouge, for respondent.
Nuncio Baientolila instituted suit No. 4435 in the Twenty-Second judicial district court against his wife, Joanna Battalia for an absolute divorce on the ground that they had been living separate and apart for a period of seven years. He obtained a judgment in his favor. Subsequently his wife brought suit No. 5338 in said court to annul and set aside said judgment on various grounds, accompanied by a demand for a divorce or, in the alternative, a separation a mensa et thoro. Judgment was rendered in her favor, declaring the judgment of divorce obtained by her husband against her in suit No. 4435 null, void and of no effect, and further declaring:
"It is further ordered, adjudged, and decreed that this suit be dismissed by request of the plaintiff in proper person under oath, and while on the witness stand."
The applicants, as attorneys for Mrs. Joanna Battalia, then instituted suit in said court against her husband, Nuncio Baientolila, to recover fees in the sum of $ 1,500, alleging that said sum was due them by the community of acquets and gains existing between Nuncio Baientolila and Joanna Battalia, his wife, for the services rendered by said attorneys in having the judgment of divorce in favor of Nuncio Baientolila declared null and void and of no effect. The defendant filed an exception of no cause of action to the suit of applicants. This exception was sustained by the lower court, and the judgment on appeal was affirmed by the Court of Appeal of the First Circuit, and we are requested in this application to review this ruling.
The Court of Appeal is of the opinion that applicants' suit against Nuncio Baientolila as head and master of the community for the fees in question was based upon a contract made by applicants with Mrs. Joanna Battalia, on behalf of herself and on behalf of her minor son, to recover their rights, and not upon a quantum meruit. It is true that applicants allege in their petition in articles 13 and 14 that Mrs. Battalia entered into a contract with them, which was assigned in part to associate counsel; yet in articles 22 and 23 of their petition applicants declare most clearly and positively that they rely for recovery upon a quantum meruit. Applicants do not pretend in any of their allegations that the contract which they have with Mrs. Battalia for compensation for services is binding upon the community, or upon the husband personally, for it is a self-evident fact that it is not. In consideration of services to be rendered her by applicants in annulling the judgment against her for divorce, in obtaining all of her rights as partner in community, and in obtaining recognition of the heirship of her minor son, Mrs. Joanna Battalia bound herself in said contract to transfer, assign, and deliver to her attorneys "an undivided one-half of all which they may recover." The husband is no party to this contract, and it is obvious, therefore, that he cannot be bound personally by its terms. It is therefore unimportant that applicants have referred to this contract at all, as the fact of its existence created no obligation affecting the community or the husband personally as far as payment of applicants' fees for professional services are concerned. We will therefore treat the allegation of applicants as to the existence of this contract as an irrelevant...
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