Stockman & Hamilton v. Whitmore

• Decision Date: 24 November 1908
• Citation: 118 N.W. 403,140 Iowa 378
• Parties: STOCKMAN & HAMILTON ET AL., Appellants, v. JOHN F. WHITMORE, Appellee
• Court: Iowa Supreme Court

118 N.W. 403

140 Iowa 378

STOCKMAN & HAMILTON ET AL., Appellants, v. JOHN F. WHITMORE, Appellee

Supreme Court of Iowa, Des Moines

November 24, 1908

Appeal from Iowa District Court.--HON. O. A. BYINGTON, Judge.

THIS is an action for attorney's fees for services rendered to the wife of defendant, in a divorce suit brought in her behalf against the defendant. Defendant demurred to the petition. The lower court sustained the demurrer, and entered judgment dismissing plaintiffs' petition, and for costs. Plaintiffs appeal.

Affirmed.

Stockman & Hamilton and R. W. Pugh in pro. per.

Yoss & Wallace, for appellee.

OPINION

EVANS, J.

According to the averments of the petition, the plaintiffs were employed by Lucy Whitmore, the wife of the defendant, to bring an action of divorce in her behalf against the defendant. The ground of the divorce charged was cruel and inhuman treatment. After a trial of the divorce case upon its merits the district court dismissed the petition. From this judgment the plaintiff in that action took an appeal to the Supreme Court. Afterwards, and before the submission of the case in this court, the plaintiff and appellant therein dismissed her appeal. The plaintiffs herein served as her attorneys throughout the trial in the lower court, and up to the time of the dismissal of the appeal in this court. Such appeal was dismissed by Mrs. Whitmore without the advice or consent of her attorneys, and contrary to their opinion. The plaintiffs aver that their services were worth the sum of $ 500, and they ask judgment for that amount, less $ 77.19 already received by them from some other source. The plaintiffs contend generally that upon this state of facts the defendant is liable to them for the value of the services so rendered by them to his wife, on the ground that the services were necessary to the proper protection of the wife.

I. The decree of the district court in the divorce case was an adjudication. It was conclusive on the plaintiff therein, and on her attorneys, that she had no grounds of divorce. The taking of an appeal to this court did not affect the character of the decree as such adjudication. Nor did the pendency of the appeal suspend the operation of the decree as an adjudication. Nothing short of a reversal or modification by this court could affect such adjudication. Mrs. Whitmore was within her rights in dismissing such appeal. The case is therefore ruled by Sherwin v. Maben, 78 Iowa 467, 43 N.W. 292, and Johnson v. Williams, 3 G. Greene, 98. Counsel attempt to distinguish the case at bar from the Sherwin case, but there is no distinction in the principles involved. Whatever difference there is, is in favor of the Sherwin case, in that the lower court in that case granted a decree to the plaintiff wife, which was afterwards reversed by this court. It was held in that case that the plaintiff could not maintain his action for attorney's fees for services in either court; the final adjudication being conclusive upon him.

The plaintiffs herein have averred in their petition that if the appeal had been prosecuted to a hearing in this court, they would have obtained a reversal of the judgment below. They contend that this allegation distinguished their case from the cases above referred to, and that its truth is necessarily admitted by the demurrer. The demurrer admits only such facts as are properly pleadable and properly pleaded. The allegation referred to is...