State ex rel. Mcnabb v. Allen Superior Court No. 2
| Decision Date | 03 December 1947 |
| Docket Number | No. 28323.,28323. |
| Parties | STATE ex rel. McNABB v. ALLEN SUPERIOR COURT NO. 2 et al. |
| Court | Indiana Supreme Court |
STATE ex rel. McNABB
v.
ALLEN SUPERIOR COURT NO. 2 et al.
No. 28323.
Supreme Court of Indiana.
Dec. 3, 1947.
Original action by State of Indiana, on the relation of Clarence R. McNabb, against Allen Superior Court No. 2 and George R. Leonard, Presiding Judge of said Allen Superior Court No. 2, in the cause number 11355 of said court, to compel respondents to set aside and vacate the dismissal of a suit for divorce, which dismissal had been requested by both parties thereto after reconciliation and resumption of marital relations, and after vacation of such dismissal, to compel respondents to hear evidence and fix a proper fee for wife's attorney and order it paid by husband direct to wife's attorney.
Alternative writ issued herein dissolved and permanent writ denied.
[75 N.E.2d 789]
Chester L. Teeter, of Fort Wayne, and Howard W. Mountz, of Garrett, for relator.
Newkirk & Keane and Hogg, Peters & Engeler, all of Fort Wayne, for respondents.
YOUNG, Judge.
This is an original action in this court, the purpose of which is to compel a trial court, among other things, to set aside and vacate the dismissal of a suit for divorce, which dismissal had been requested by both parties thereto after reconciliation and resumption of marital relations, and, after the vacation of such dismissal, to compel the trial court to hear evidence and fix a proper fee for the wife's attorney and order it paid by the husband direct to the wife's attorney.
The husband and wife separated on March 16, 1946, and a few days thereafter the wife employed relator to undertake to effect a reconciliation. Efforts to this end were made and failed and on August 12, 1946, the husband caused suit for divorce to be filed charging his wife with adultery. Relator appeared for the wife and on August 23, 1946, filed a petition on her behalf asking money for the support
[75 N.E.2d 790]
of herself and child pending disposition of the divorce action and for money for attorney fees and other expenses sufficient to permit her to make proper defense of the action. On the same day relator filed in behalf of the wife a petition for inspection of books and papers for the purpose of discovering the husband's worth as a basis for determining the property rights of his client. On September 4, 1946, the petition for support of the wife and the minor child was heard and the husband was ordered to pay the wife $200 per month pending litigation beginning on the date the action was filed. Hearing on the question of expense money and attorney fees pending litigation and on the petition to inspect books and papers was by agreement of counsel continued until a later date. On September 23, 1946, relator filed answer and cross-complaint on behalf of the wife, in which she sought an absolute divorce, custody of her child, alimony and attorney's fee.
On October 2, 1946, both the husband and wife appeared in Court with the husband's lawyer and reported to the judge that they had effected a reconciliation and asked that the divorce proceedings be dismissed. Relator had not been notified of this appearance by the parties and nothing was done. A few days later the parties with the husband's lawyer again appeared in court and the parties again asked that the case be dismissed. Relator was present and he told the court that he had no objection to reconciliation or to the dismissal of the divorce proceedings, but asked that the court first grant him a hearing on the petition for attorney fees theretofore filed by him on behalf of the defendant wife. He offered to show the nature, extent and value of his services to her and requested that before entering a dismissal the reasonable value of said services be judicially determined and the plaintiff husband be ordered to pay same to relator. The court denied this request and entered an order of dismissal of the divorce proceedings, and at the same time, without hearing, it entered an order requiring the husband to pay the clerk of the court the sum of $75 for the benefit of the wife's attorney. The $75 fee was based upon the minimum fixed by the local bar association for allowance to a wife for an attorney fee pending litigation for the purpose of permitting her to prepare her cause of action or defense. Relator complains of this and if this practice were before us upon appeal we would not hesitate to say that a determination of the fee over the objection of either party upon the sole basis of a bar association rule without consideration of the particular facts of the particular case would be an abuse of discretion.
On November 7, 1946, during the same term of court in which the case had been dismissed, relator filed a petition in said divorce action, in his own name, asking that the judgment of dismissal be set aside, and that a hearing be had on the issue of reasonable attorney fees due him, and that petitioner be permitted to submit evidence as to the nature, extent and value of his services to the wife, and that the husband be ordered to pay to the relator such sum. Counsel for the husband filed a demurrer to relator's said petition on the ground that the wife was the only party to whom the relief sought was available, or who could prosecute said petition for attorney fees, and that relator was not a party to the action in which he had filed his petition, and on the further ground that there was no showing in the petition that such an order was necessary to insure to the wife an efficient preparation of her case and a fair and impartial trial thereof. This demurrer was sustained. Thereupon relator began this action in this court, asking this court to mandate the respondent judge to overrule the demurrer to his petition, to vacate the judgment of dismissal, to grant a hearing on relator's petition for attorney fees, judicially to determine the reasonable fee to which relator is entitled, and to order the amount so determined to be paid to relator by the husband.
It may be worth noting that at no place, either in petition in the lower court or in his petition in this court, is there any allegation that the reconciliation or dismissal was fraudulent or collusive or effected for the purpose of depriving relator of his fee.
[75 N.E.2d 791]
Relator's petition presents to us at least two fundamental questions. The first is whether the relator had such interest in the case as permitted him in his own name and right to ask that the judgment of dismissal be vacated in order that he might have a hearing on the question of the allowance of attorney fees direct to him. The second is, if he had such right, whether the acts sought to be mandated are ministerial and therefore subject to control by mandate, or whether they are so discretionary and judicial in character as to be beyond control by mandate.
An attorney is not a party to litigation and a client may, as a general rule, settle and dismiss his cause of action without consulting his attorney and without the attorney's knowledge or consent and the attorney has no power to prevent it. 5 Am.Juris. pp. 328, 373, Attorneys at Law, §§ 116, 185; Davis v. Chase, 1902, 159 Ind. 242, 64 N.E. 88, 853,95 Am.St.Rep. 294;Hanna v. Island Coal Company, 1892, 5 Ind.App. 163, 167, 31 N.E. 846,51 Am.St.Rep. 246;Gerdink v. Meginnis, 1919, 73 Ind.App. 39, 43, 126 N.E. 499; Olczak v. Marchelewicz...
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