Schuster v. Schuster

• Decision Date: 22 November 1901
• Citation: 87 N.W. 1014,84 Minn. 403
• Parties: SCHUSTER v. SCHUSTER.
• Court: Minnesota Supreme Court

84 Minn. 403

87 N.W. 1014

SCHUSTER

v.SCHUSTER.

Supreme Court of Minnesota.

Nov. 22, 1901.

Appeal from district court, Olmsted county; Arthur H. Snow, Judge.

Action by Henry Schuster against Wilma A. Schuster.From an order granting attorney's fees, plaintiff appeals.Affirmed.

Syllabus by the Court

1.Held, that the moving papers in a proceeding under Gen. St. 1894, § 4799, made a case for the allowance of attorney's fees in a divorce action which had once been tried, notwithstanding the fact that the amount allowed was owing and was to be paid to defendant's attorney for services rendered at the first trial.

2.Held, further, that an order allowing such fees is appealable.W. Logan Brackenridge, for appellant.

Chas. C. Willson, for respondent.

COLLINS, J.

In a divorce action brought by a husband against his wife upon the ground of adultery, the court below, before trial, and under the provisions of Gen. St. 1894, § 4799, ordered the plaintiff to pay $150 as attorney's fees and $100 as suit money, necessary to enable her to defend, which sums were paid.The action was then brought to trial, which was vigorously contested, lasted eight days, and resulted in a disagreement of the jury.A second trial was fixed for a day certain, but before the time came, upon the hearing of a motion made for that purpose, the court ordered that the husband pay the further ‘sum of $250 as the balance in full of all fees of defendant's attorneys so far as the same are to be paid by plaintiff up to the present time,’ and also that an additional sum be paid for services to be rendered and expenses to be incurred at the coming second trial.From that part of the order which required payment of attorney's fees for past services, above quoted, the husband appealed.

Section 4799, supra, on which the order appealed from was based, reads as follows: ‘The court may, in its discretion, require the husband to pay any sum necessary to enable the wife to carry on or defend the action, or for her support during its pendency.’It stands admitted, virtually, by both parties, that the court had no authroity to make the order unless it appeared from the moving papers that the sum in question was necessary to enable the wife to proceed with a proper defense at the second trial.Counsel for the husband insists that no sufficient showing was made, and, as we understand him, that, if there had been, the court below was wholly without authority to make an order for the payment of money to be used to compensate an attorney for past services, or to defray expenses which had previously been incurred.The first point for determination under the contention is the sufficiency of the moving papers.Has a case been made out for an order directing the payment of the moving papers.Has this question it is to be kept in mind that a jury had disagreed in an action for divorce based upon a large number of charges of adultery made against the defendant wife,-most important and serious charges for her to face.Her attorney had been actively engaged for more than one week at that trial, and had received as compensation the sum of $150 only, allowed by the court, as before stated.From these papers it further appears that the wife had no property of any description; that in preparing for the first trial and compelling the attendance of witnesses she expended the $100 suit money, and incurred an indebtedness of more than $50 in addition, which remained unpaid; that the sum of $150, allowed for attorney's fees for that trial, was insufficient; and this seems evident when we consider the number of days he was actually engaged therein, to say nothing of preliminary work.She could pay nothing at all of this deficit to her attorney.This gentleman, familiar with the facts in the case, insisted on withdrawing from further connection with it unless paid a fair compensation for past services, and if he did so she would be compelled to rely upon counsel wholly uninformed as to the facts of her defense.Other facts appeared, which need not be detailed.Under the circumstances it would seem very unfair and unjust to hold that all that was necessary to entitle her to this allowance did not appear.We are of opinion that a case for an allowance was made out, and that it was shown that the money ordered to be paid was necessary to enable Mrs. Schuster to further defend in the action, notwithstanding the fact that the amount allowed was owing, and was to be used in liquidating attorney's fees for past services.Two cases from the New York court of appeals have been cited by both parties: Beadleston v....