Sherwin v. Maben

• Decision Date: 14 October 1889
• Citation: 43 N.W. 292,78 Iowa 467
• Parties: SHERWIN ET AL. v. MABEN.
• Court: Iowa Supreme Court

78 Iowa 467

43 N.W. 292

SHERWIN ET AL.

v.MABEN.

Supreme Court of Iowa.

Oct. 14, 1889.

Appeal from district court, Cerro Gordo county; G. W. RUDDICK, Judge.

The petition shows that in 1885 the plaintiffs were a partnership engaged in the practice of law, and that as such it was employed to commence and prosecute a divorce proceeding for the defendant's wife against him; and that the suit was commenced and prosecuted in the district court for Cerro Gordo county, and on appeal in this court. That in the prosecution of such suit the plaintiff therein incurred costs and expenses, including attorney's fees, to the amount of $506.97, of which amount $152 was paid by the defendant under orders of the court. This suit is to recover a balance of $354.97 as fees for professional services and expenses incurred at the instance of the wife of defendant in such proceeding. The petition in this suit sets out a copy of the petition in the former suit, showing that cruel and inhuman treatment was the alleged ground for the divorce. To the petition there was a demurrer assigning the following reasons: “That there are no facts in said petition and amendment that show that plaintiffs have any claim or right to recover from this defendant for said professional services on any written or implied contract, or on any agreement whatever by defendant to pay the debts of his said wife, Josie A. Maben; that the petition and amendment thereto do not show that the professional services rendered said defendant's wife were necessary, as contemplated by law.” The district court sustained the demurrer, and entered judgment for defendant, from which the plaintiffs appeal.Blythe & Markley, for appellants.

J. H. McConlogue, for appellee.

GRANGER, J.

The arguments lead us to consider former decisions of this court bearing on the question, as counsel for both parties claim support therefrom, and to some extent, as is frequently the case, the opposing sides claim support from the same authority. The two grounds of the demurrer properly embody a proposition to this effect. Where attorneys in good faith render professional services for a wife in a divorce proceeding against her husband, does the law imply a promise on his part to pay therefor? In considering the proposition it may be assumed that the law does imply such a promise as to necessaries for the wife. The cases cited for our consideration are Johnson v. Williams, 3 G. Greene, 97;Porter v. Briggs, 38 Iowa, 166, and Preston v. Johnson, 65 Iowa, 285, 21 N. W. Rep. 606. Counsel for appellant close their argument with the remark: “We rest this case upon the law as laid down in Porter v. Briggs and Preston v. Johnson,” with a claim that the former overrules the law as announced in Johnson v. Williams. Counsel for appellee with equal confidence relies upon the authority of the latter case, and claims the rule to be followed in Porter v. Briggs, and closes with the remark: “It is not necessary to cite further authorities on this matter.” Let us look to the cases. The conclusiveness of Johnson v. Williams as an authority against appellant is not questioned, unless it has been since overruled. It could not well be, for in a case like this it approved an instruction “that the defendant was not liable for professional services rendered to the wife of defendant in procuring a divorce and alimony, if such divorce and alimony are obtained, unless he was employed by defendant either in person or agent, or unless defendant promised to pay, or unless he was ordered to pay for such by the court.” None of the grounds on which liability is recognized in the instruction are claimed in this case.

1. Is the rule announced in Johnson v. Williams overruled in Porter v. Briggs? The very language of the case seems decisive of the question, and that it is not. By reference to the opinion, when referring to the case of Johnson v. Williams, it says: “The decision of that case is not in conflict with our conclusion above announced, while the reasons upon which it is based must be admitted to conflict with our views.” We suppose that correct decisions are sometimes not based on sound reasoning, and hence it does not necessarily follow that a conflict of views in opinions must lead to a conflict in the conclusions reached. We may not inaptly quote the remark that courts sometimes give “very poor reasons for very good decisions.” The court further attempts to distinguish the cases, and, again referring to Johnson v. Williams, says: “It was not shown that the...