Sears v. Swenson

• Decision Date: 07 March 1908
• Citation: 115 N.W. 519,22 S.D. 74
• Parties: SEARS et al. v. SWENSON.
• Court: South Dakota Supreme Court

115 N.W. 519

22 S.D. 74

SEARS et al. v. SWENSON.

Supreme Court of South Dakota

March 7, 1908

Appeal from Circuit Court, Day County.

Action by Frank Sears and another against Kristian Scriver Swenson. From a judgment for plaintiffs, defendant appeals. Reversed.

Anderson & Waddel, for appellant.

CORSON J.

This is an appeal by the defendant from a judgment on a directed verdict in favor of the plaintiffs. The action was instituted by the plaintiffs to recover for legal services alleged to have been rendered by the plaintiffs to appellant's wife in instituting an action for divorce by her against him.

It is contended by the appellant that the court erred in directing a verdict against him for the reason that he was not liable to the plaintiffs on account of services so rendered to his wife; and the question therefore presented is: Were the plaintiffs entitled to a verdict against the defendant upon the facts disclosed in this case? It appears from the evidence that in the month of June, 1905, the appellant's wife employed the plaintiffs to commence an action against the appellant for a divorce; that after a series of consultations the plaintiffs commenced said action by preparing and causing to be served upon the appellant a summons and complaint in due form; that at the same time plaintiffs also prepared and caused to be served upon appellant an application for temporary alimony and attorney's fees; that thereafter, and before the hearing upon the application for temporary alimony and attorney's fees, the plaintiffs were by appellant's wife advised that she had decided to drop the case, and said action for divorce was thereupon dismissed; that the employment of the plaintiffs by appellant's wife was without the knowledge or consent of appellant; that thereafter the plaintiffs sent appellant a bill for legal services rendered to his wife in the sum of $202.80, and demanded payment thereof, which the appellant refused to pay; and therefore the plaintiffs commenced this action to recover the sum so claimed to be due them for the services so rendered to the wife in her said divorce proceedings. The answer of the defendant was a general and specific denial of any and all indebtedness from him to the plaintiffs. There was no conflict in the evidence and at the conclusion of the same the defendant moved for the direction of a verdict in his favor, which motion was denied and thereupon the plaintiffs moved the court for the direction of a verdict in their favor, which was granted.

Section 103 of the Revised Civil Code provides: "If the husband neglect to make adequate provisions for the support of his wife except in the cases mentioned in the next section any other person may in good faith supply her with articles necessary for her support and recover the reasonable value thereof from her husband." Section 90 of the same Code provides: "While an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action." And section 93 provides: "The court may require the husband to give reasonable security for providing maintenance, or making any payments required under the provisions of this chapter, and may enforce the same by the appointment of a receiver, or by any other remedy applicable to the case. ***" It will thus be seen that, if the husband neglect to make adequate provisions for the support of his wife, any other person may in good faith supply her with articles necessary for her support and recover the reasonable value thereof from the husband. It will be further observed that while an action for divorce is pending the husband may be required to pay, not only alimony to the wife but also money to prosecute or defend the action. It is quite clear under the authorities that the value of the services rendered by the plaintiffs in instituting the action for divorce by the wife against her husband cannot be recovered under the provisions of section 103, as such services cannot be regarded as necessaries for the benefit of the wife within the provisions of that section. Shelton v. Pendleton, 18 Conn. 417; Coke v. Newell, 40 Conn. 596; Coffin v. Dunham, 8 Cush. (Mass.) 404, 54 Am. Dec. 769; Ray v. Adden, 50 N.H. 82, 9 Am. Rep. 175; Wing v. Hurlburt, 15 Vt. 607, 40 Am. Dec. 695; Dow v. Eyster, 79 Ill. 254; Yeiser v. Lowe, 50 Neb. 310, 69 N.W. 847; Clarke v. Burke, 65 Wis. 359, 27 N.W. 22, 56 Am. Rep. 631; Williams v. Monroe, 18 B. Mon. (Ky.) 514; Morrison v. Holt, 42 N.H. 478, 80 Am. Dec. 120; McCullough v. Robinson, 2 Ind. 630; Thompson v. Thompson, 3 Head (Tenn.) 527; 2 Cyc. 1221.

The Supreme Court of Connecticut, in Shelton v. Pendleton, supra in a case analogous to the one at bar and regarded as a...