Szymanski v. Szymanski

• Decision Date: 29 October 1912
• Citation: 138 N.W. 53,151 Wis. 145
• Parties: SZYMANSKI v. SZYMANSKI.
• Court: Wisconsin Supreme Court

151 Wis. 145

138 N.W. 53

SZYMANSKI

v.SZYMANSKI.

Supreme Court of Wisconsin.

Oct. 29, 1912.

Appeal from Circuit Court, Milwaukee County; J. C. Ludwig, Judge.

Divorce action by Annie Szymanski against Max E. Szymanski. From an order requiring defendant to pay plaintiff's attorney a certain sum for his services, defendant appeals. Reversed and remanded, with directions to enter order of discontinuance.Lorenz & Lorenz, of Milwaukee, for appellant.

Walter Schinz, of Milwaukee, for respondent.

TIMLIN, J.

A summons, complaint, affidavit, and order to show cause returnable November 11, 1910, in this suit for divorce were served upon defendant at 4:30 o'clock p. m. on November 7, 1910. The attorney for plaintiff was Mr. Peter S. Brzonkala. The defendant attempted to find his wife's attorney, for the purpose of making a settlement, on the evening of November 7th, but failed to find him, and was at his office for the same purpose at 7:30 or 8 o'clock the next morning. To quote from the brief of counsel opposed to him in this court, he “begged that a reconciliation be effected, and asked Mr. Brzonkala to call the plaintiff and explain that the defendant was ready to take everything back and apologize for his conduct, so that a reconciliation could be effected.” The testimony of Mr. Brzonkala differs very materially from that of plaintiff and defendant in several important particulars, and we do not intend to pass upon any question of credibility. But it may be safely set down that the efforts of the defendant to effect a reconciliation with his wife were immediate, earnest, and constant, and that Mr. Brzonkala either opposed or gave no aid to such reconciliation, and that husband and wife settled their differences and became reconciled on the 9th or 10th of November, 1910. The defendant offered Brzonkala $75 for attorney's fees, which the latter refused. Brzonkala had been a lawyer for three years, and seemed to think his services were worth $50 per day. Unable to come to any settlement with Mr. Brzonkala, the husband and wife resumed their marital relations, and she notified Brzonkala to dismiss her divorce suit. He refused to do this, but instead filed the papers, against her wish, in the circuit court, paid the clerk's fees and suit tax out of his own funds, and on January 3, 1911, applied for and obtained, on January 30, 1911, against the objection and exception of the defendant, an order requiring the defendant to pay him the sum of $150 “in full payment for services rendered to him in the above-entitled action as attorney for the above-named plaintiff.” From this order, defendant appeals.

[1] In a divorce case, as in other cases, the circuit court has no doubt jurisdiction to refuse to allow a plaintiff to arbitrarily discontinue his action. Linden L. Co. v. Milwaukee, etc., Co., 107 Wis. 493, 83 N. W. 851. To thwart an attempt to defraud an attorney by a collusive settlement might be a very good reason for exercising this jurisdiction, even in a divorce case. Clarke v. Burke, 65 Wis. 359, 361, 27 N. W. 22, 56 Am. Rep. 631. But there is no such case here. Where the husband, as plaintiff, sought leave of court to discontinue a divorce case which he had been carrying on against the wife and she, opposing the discontinuance, showed that she had, in defending this action, paid out some attorney's fees and incurred others, and that there was alimony in arrears from him, an order of discontinuance was properly conditioned upon the payment of such alimony and a reasonable amount of suit money. Schulz v. Schulz, 128 Wis. 28, 107 N. W. 302. Again, there is no such case here. This case is one in which the defendant, as soon as he learned...