State ex rel. McNabb v. Allen Superior Court 2

• Decision Date: 03 December 1947
• Docket Number: 28323.
• Citation: 75 N.E.2d 788,225 Ind. 402
• Parties: STATE ex rel. McNABB v. ALLEN SUPERIOR COURT NO. 2 et al.
• Court: Indiana Supreme Court

75 N.E.2d 788

225 Ind. 402

STATE ex rel. McNABB v. ALLEN SUPERIOR COURT NO. 2 et al.

No. 28323.

Supreme Court of Indiana

December 3, 1947

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 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.

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, 1933, 98 Ind.App. 244, 247, 188 N.E. 790; Kitch, Administrator v. Moslander, 1943, 114 Ind.App. 74, 82, 50 N.E.2d 933; Wahl v. Strous, 1942, 344 Pa. 402, 25 A.2d 820, 822; Butler v. Young, 1939, 121 W.Va. 176, 2 S.E.2d 250, 121 A.L.R. 1119, and Annotation at page 1122.

The general rule, as above stated, is based primarily upon public policy. The law encourages the settlement of litigation and for an attorney to acquire the right to veto the termination of litigation would violate such public policy. The rule is even stronger where marital rights are involved. In such situation public policy intervenes upon the additional ground that the home is the foundation of society and anything which tends to weaken the home is frowned upon by the law. It has been held that to permit an action involving marital relations to be maintained by counsel for the sole purpose of collecting his fee would violate this rule of public policy. 5 Am.Juris. p. 373, Attorneys at Law, § 185; Gerdink v. Meginnis, supra; Anderson v. Steger, 1898, 173 Ill. 112, 50 N.E. 665.

We quote from 5 Am.Juris, p. 373:

'* * * The rule supported by the majority of the decisions is to the effect that where the parties have abandoned the suit, condoned their offenses, and resumed their marital relations, such action operates to end the litigation, and it cannot be continued by counsel for the complaining spouse, at least where no counter cause of action is set up in a cross complaint or counterclaim. * * * The reason for this rule is that to permit an attorney to continue such an action after the parties thereto have become reconciled and resumed cohabitation would be in violation of public policy, as continuing litigation after the parties have put an end to it, thereby having a tendency to break up the reconciliation. * * *.'

This same language may be found in an annotation in 45 A.L.R. at page 941, where many cases are cited in support thereof.

The same general principle in an action involving reconciliation of marital differences is asserted in this state in Gerdink v. Meginnis, supra. That was an action by the husband for the enticement of his wife. While the case was pending the husband desired to dismiss same and requested his attorneys to do so. They refused. On the contrary they asked the court for leave to prosecute the action in the name of plaintiff to protect their fees. They claimed that the plaintiff had wrongfully and fraudulently settled the cause. The Appellate Court held that the plaintiff could not assign his cause of action because it was personal and did not survive and to do so would be champertous and void and in violation of public policy. The court also held that the attorneys could not prosecute the action because it did not belong to them. We quote the following from page 45 of 73 Ind.App., page 501 of 126 N.E.:

'The record before us shows 'that investigation had convinced plaintiff that the charges set out in his complaint against the defendant were without foundation in fact,' that the plaintiff and his wife 'had become reconciled' and were again living happily together as husband and wife. Upon...