Sager v. Risk

• Decision Date: 14 December 1920
• Docket Number: No. 33779.,33779.
• Citation: 190 Iowa 207,180 N.W. 299
• Court: Iowa Supreme Court
• Parties: SAGER, SWEET & EDWARDS v. RISK ET AL.

190 Iowa 207

180 N.W. 299

SAGER, SWEET & EDWARDS

v.RISK ET AL.

No. 33779.

Supreme Court of Iowa.

Dec. 14, 1920.

Appeal from District Court, Buchanan County; H. B. Boies, Judge.

Action to recover from wife attorney's fees for defending her husband in prosecution on charge of a felony, on the theory that services rendered constituted reasonable and necessary family expenses within the meaning of section 3165 of the Supplement to the Code 1913. Affirmed.Sager, Sweet & Edwards, of Waterloo, in pro. per.

M. W. Harmon, of Independence, for appellees.

ARTHUR, J.

In this action plaintiff seeks to recover for legal services, together with some expenses incurred in defending Loren Risk in the case of State of Iowa v. Loren Risk, wherein he was charged with a felony, namely, subornation of perjury. Plaintiff seeks to charge the property of Ella M. Risk, wife of Loren Risk, on the theory that the services rendered and disbursements incurred for Loren Risk constitute reasonable and necessary expenses within the meaning of section 3165 of the 1913 Supplement to the Code of Iowa, and are therefore chargeable upon the property of the defendant Ella M. Risk.

Ella M. Risk demurred to plaintiff's petition upon the ground that the facts stated in the petition do not entitle plaintiff to the relief demanded against her because the facts stated in the petition do not show that the professional services alleged to have been rendered the defendant Loren Risk were reasonable and necessary expenses of the family of Loren Risk. The trial court sustained the demurrer, and, upon the election by plaintiff to stand on its petition, rendered judgment in favor of defendant Ella M. Risk against the plaintiff for costs.

Plaintiff assigns as error the sustaining of the demurrer to the petition.

From the petition it appears: That plaintiff is a partnership engaged in the general practice of law at Waterloo, Iowa; that in February, 1916, the plaintiff was employed by the defendant Loren Risk to defend him in a criminal case entitled State of Iowa v. Loren Risk, in the district court of Blackhawk county, wherein the defendant was charged with a felony, namely, subornation of perjury; that, pursuant to such employment, the plaintiff firm performed services of the reasonable value of $1,800, and made disbursements in connection with such case amounting to $31.30; that of this amount the defendant Loren Risk paid plaintiff $100, leaving a balance due from Loren Risk of $1,731.30; that defendant Ella M. Risk is the wife of defendant Loren Risk, and at the time said services were performed said defendants were living together as husband and wife; that the trial resulted in an acquittal of the defendant Loren Risk.

The determination of this case involves the construction of the statute, which reads:

“The reasonable and necessary expenses of the family and the education of the children are chargeable upon the property of both husband and wife, or either of them, and in relation thereto they may be sued jointly or separately.” Section 3165 of the Supplement to the Code 1913.

This statute has been before this court for construction in quite a number of cases before the phrase “reasonable and necessary” was placed in the statute by the Thirty-Fifth General Assembly, but not since.

The question for our determination is whether or not Ella M. Risk, the wife of Loren Risk, is liable for the professional services rendered her husband, as claimed in the petition.

Is a charge for legal services rendered the husband in defending him in a prosecution on a felony charge “an expense of the family,” under section 3165 of the Supplement to the Code 1913, is the question before us.

Counsel on both sides say that they discover no case where this exact question has been presented and decided by any court. We have discovered none. Appellants argue that this and other courts have decided cases holding that services analogous to legal services performed by the plaintiff in this case are reasonable and necessary expenses of the family, and, consequently, are chargeable upon the property of the wife as provided in section 3165 of the Code. Appellants cite and review the cases wherein this court had held that medical services rendered to a member of a family are family expenses within the meaning of the statute, and argue their analogy to the case before us.

This is the first case presented to this court since the phrase “reasonable and necessary” was incorporated into the statute. But we will not have occasion to construe and apply such phrase in the case before us, unless we should first determine that the attorney fee charged is an expense of the family, as contemplated by the statute.

Appellants argue that medical charges are analogous to charges for legal services. We often resort to the reasoning of the courts to ascertain the analogy of questions. In the first case in Iowa where the question arose, whether a charge for medical services was an expense of the family, the question came up on review of an instruction. The court in its instruction to the jury had assumed that the charge for the medical services was a family expense, and this court simply approved the instruction that far, without discussion or comment. See Schrader v. Hoover, 80 Iowa, 243, 45 N. W. 734. In the succeeding cases involving the statute with respect to charges for surgical and medical attendance, the rule adopted in the Schrader Case has been...