Rogers v. Daniel

Decision Date31 July 1923
Docket NumberCase Number: 11231
PartiesROGERS et al. v. DANIEL et ux.
CourtOklahoma Supreme Court

¶0 1. Divorce--Alimony Pendente Lite--Dismissal Before Allowance -- Attorneys' Fees--Liability of Husband.

In a divorce action instituted by the wife under contract with attorneys to pay them for their services out of the allowance made to her by the court for alimony and "the expenses of the suit," as authorized by section 560, Comp. Stat. 1921 (Rev. Laws 1910, sec. 4967, where the wife on her own motion before answer filed, and before allowance by the court under section 506, supra, dismisses her action and resumes marital relations with her husband, her attorneys cannot maintain an independent action against the husband for compensation for services rendered the wife either upon the contract or upon quantum meruit.

2. Same.

Alimony and "the expenses of the suit," under our statute, being based upon a sound judicial discretion, no right thereto becomes vested in advance of determination and allowance by the court so as to enable the wife to make such an assignment thereof, or of an interest therein, as will support an action by her attorneys against the husband for debt for the value of their services to the wife.

3. Same--Attorneys' Fees as "Necessaries."

Under the language of section 6614, Comp. Star. 1921 (Rev. Laws 1910, sec. 3358), attorneys' services to a wife in a divorce action cannot be classed as "necessaries" for which the husband will be held liable, because not "articles necessary for her support."

Commissioners' Opinion, Division No. 1.

Error from District Court, Tulsa County; Owen Owen, Judge.

Action by Charles B. Rogers, Fred A. Fulghum, W. I. Williams, and R. L. Davidson against Gertrude P. Daniel and Richard T. Daniel to recover attorneys' fees earned in a divorce action. Demurrer by Richard T. Daniel to the petition of plaintiffs sustained, and case dismissed as to him. Plaintiffs bring error. Affirmed.

In June, 1915, the defendant Gertrude P. Daniel employed the plaintiffs as attorneys to file an action for her for divorce and alimony against the defendant Richard T. Daniel. That action was commenced, and after service was had in the case, application was made to the court for an order allowing temporary alimony and for a further allowance for expenses in prosecuting that action. Notice of this application was served upon the defendant, Richard T. Daniel, and before the date set for hearing of such application, plaintiff and defendant in that action became reconciled and the plaintiff, Gertrude P. Daniel, filed her motion therein to dismiss before any appearance had been made by the defendant, Richard T. Daniel, and before any pleading had been filed therein in his behalf. This motion to dismiss was filed without the knowledge or consent of her attorneys, who are plaintiffs in this action.

Thereafter, and on January 2, 1918, this action was commenced by the plaintiffs against the defendants to recover the reasonable value of their services as attorneys for Gertrude P. Daniel in the divorce action, and plaintiffs alleged that such services were reasonably worth the sum of $ 20,000. Defendant Richard T. Daniel appeared and filed his separate demurrer to the petition of plaintiffs, which demurrer was by the court sustained and the action dismissed as to the defendant Richard T. Daniel. Exceptions were saved to this ruling and order of the court and the case is brought here by petition in error and transcript to have the action of said district court in sustaining said demurrer, and dismissing the action as to defendant Richard T. Daniel reviewed by this court.

Charles B. Rogers, F. A. Fulghum, W. I. Williams, and R. L. Davidson, for plaintiffs in error.

Biddison & Campbell, for defendants in error.


¶1 There is only one question presented by the record in this case, and that is whether the trial court erred as a matter of law in sustaining the demurrer to the petition of plaintiffs and dismissing the action as to the defendant Richard T. Daniel.

¶2 Both plaintiffs and defendants in their briefs agree that the question presented for determination here has never before arisen in this jurisdiction. It is, therefore, a question of first impression so far as this court is concerned, and the conclusion reached herein must be drawn from a construction of the applicable statutes of this state, aided so far as possible by the construction placed upon similar statutes in other jurisdictions, and a consideration of the legal principles involved.

¶3 This exact question has been before the courts of a majority of the states. In some jurisdictions it has been presented and considered under the principles of the common law in the absence of statutes. In others it has been considered and passed upon in the light of statutes changing the common law rule but not expressly or by necessary implication providing that attorneys' fees in such cases are "necessaries" which the husband is required to furnish to the wife. In still other jurisdictions the question has arisen under statutes similar to those in force in this state, and in such cases the decisions have been based solely upon the provisions of the applicable statutes without reference to the common law.

¶4 In those jurisdictions where the question has arisen under the common law or under statutes not expressly or by necessary implication allowing to the wife attorneys' fees in divorce actions, the conclusions reached have presented directly opposing views. The great majority of the decisions in such jurisdictions, however, have denied the right of attorneys to maintain an independent action against the husband under such circumstances. It is sufficient here to cite authorities holding to this view, among which are the following: Wing v. Hurlburt (Vt.) 40 Am. Dec. 695; Coffin v. Dunham (Mass.) 54 Am. Dec. 769; Johnson v. Williams (Iowa) 54 Am. Dec. 491; Sherwin v. Maben (Iowa) 43 N.W. 292; Morrison v. Holt (N. H.) 80 Am. Dec. 120; Williams v. Monroe (Ky.) 18 B. Mon. 514; Gordon et al. v. Brackey (Iowa) 121 N.W. 83; Clarke v. Burke (Wis.) 27 N.W. 22; Ray v. Adden (N. H.) 9 Am. Rep. 175; Wolcott v. Patterson (Mich.) 58 N.W. 1006; Isbell v. Weiss, 60 Mo. App. 54; Dow v. Eyster, 79 Ill. 254; Shelton v. Pendleton, 18 Conn. 417; Cooke v. Newell, 40 Conn. 596; Pearson v. Darrington, 32 Ala. 227; McCullough v. Robinson, 2 Ind. 630; Keefer v. Keefer (Ga.) 78 S.E. 462.

¶5 Some of the cases holding the contrary view are: Sprayberry v. Merk, 30 Ga. 81; Glenn v. Hill, 50 Ga. 94; Gossett v. Patten, 23 Kan. 340; Ceccato v. Deutschman (Tex.) 47 S.W. 739; Preston v. Johnson (Iowa) 21 N.W. 606; McClelland v. McClelland (Tex.) 37 S.W. 350; Maddy v. Prevulsky (Iowa) 160 N.W. 762; McCurley v. Stockbridge (Md.) 50 Am. Rep. 229; Langbein v. Schneider, 16 N.Y.S. 943; Hahn v. Rogers, 69 N.Y.S. 926; Peck v. Marling, 22 W. Va. 708; Clyde v. Peavy (Iowa) 36 N.W. 883; Bord v. Stubbs (Tex.) 54 S.W. 633; Dodd v. Hein (Tex.) 62 S.W. 811.

¶6 The above citations are merely illustrative of the irreconcilable differences in judicial opinion upon this question, where such opinion is not guided and directed by express statutory language.

¶7 In those states where the question has arisen under legislative enactments intended to express clearly a legislative intent in derogation of the common law, a remarkable uniformity of judicial expression is found. In Maine, Illinois, Wisconsin, South Dakota, Washington, Iowa, Missouri, and Arkansas, where this exact question has arisen under statutes of those states, it has been held that an independent action against the husband cannot be maintained. Meaher v. Mitchell (Me.) 92 A. 492; Dow v. Eyster, 79 Ill. 254; Clarke v. Burke (Wis.) 27 N.W. 22; Sears v. Swenson (S. D.) 115 N.W. 519; Zent v. Sullivan (Wash.) 91 P. 1088; Humphries v. Cooper (Wash.) 104 P. 606; Yeiser v. Lowe (Iowa) 69 N.W. 847; Gordon v. Brackey (Iowa) 121 N.W. 83; Isbell v. Weiss, 60 Mo. App. 54; Hamilton v. Salisbury (Mo.) 114 S.W. 563; Kincheloe v. Merriman (Ark.) 16 S.W. 578. It is true that in Iowa the two cases above cited from that state have been expressly overruled by the later case of Maddy v. Prevulsky, 160 N.W. 762, but this latter decision was a four to three decision, and the logic and persuasive force of the dissenting opinion seem to fully sustain the correctness of the prior decisions. In Kansas the case of Gossett v. Patten, 23 Kan. 340, sustains the right of attorneys for the wife to maintain an independent action against the husband, but the facts of that case were such as to make it exceptional, and it cannot be considered as establishing a rule in that state in conflict with the authorities last above cited. So it may be fairly said that in those jurisdictions where the question has arisen upon the express language of statutory enactments the courts have uniformly held that the recovery of attorney's fees is ancillary to the divorce action, and that an independent action therefor against the husband cannot be maintained.

¶8 This review of authorities from other states leads to a review and consideration of the applicable statutes of this state and of the decisions of this court which may materially assist in reaching a correct conclusion as to the proper construction of those statutes, for after all it is upon the very language of our own statute that the decision of this question in this state must rest.

¶9 Divorce and alimony and their concomitants, "suit money," "necessary expenses," "attorneys fees", "expenses of the suit", etc., are creatures of statute, and the extent of the rights conferred must depend upon a proper construction of the language used in conferring those rights. Section 3563, Comp. Stat. 1921 (Rev. Laws 1910, sec. 2948), provides:

"The rule of the common law, that statutes in derogation thereof are to be strictly construed, has no application to the laws of this state, which are to be

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