Taylor v. Taylor

• Decision Date: 24 February 1921
• Citation: 33 Idaho 445,196 P. 211
• Court: Idaho Supreme Court
• Parties: CLARINDA TAYLOR, by Her Attorneys, R. W. SWAGLER and SCATTERDAY & VAN DUYN, Appellant, v. B. Z. TAYLOR, Respondent

196 P. 211

33 Idaho 445

CLARINDA TAYLOR, by Her Attorneys, R. W. SWAGLER and SCATTERDAY & VAN DUYN, Appellant, v. B. Z. TAYLOR, Respondent

Supreme Court of Idaho

February 24, 1921

DIVORCE ACTION-RECOVERY OF ATTORNEY FEES-ATTORNEYS' LIEN.

1. Under the provisions of C. S., secs. 4642 and 4653, the awarding of alimony, attorney fees and costs, in a divorce action, rests in the discretion of the trial court; and it may at any time, while the action is pending, require the husband to pay for such services as may be necessary to enable the wife to prosecute or defend the action.

2. The language used in C. S., sec. 4642, "while an action for divorce is pending," covers the entire time from the commencement of the suit until and including the final order disposing of the same.

3. When, in a divorce case, the wife has incurred liabilities for attorney fees and other expenses of the suit, the trial court may, in its discretion, under the provisions of sec 4642, supra, after such expenses have been incurred and at any time while the action is pending, upon proper showing being made, order the husband to advance the money to pay them. Donaldson v. Donaldson, 31 Idaho 181, 170 P. 94 modified.

4. The provisions of C. S., sec. 6576, allowing an attorney a lien upon his client's cause of action or counterclaim, are broad enough to include all forms of civil actions.

5. An action for decree of divorce, after condonation by the injured spouse, may be continued for the purpose of requiring the husband to pay attorney fees and costs expended in connection therewith, in a proper case.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed L. Bryan, Judge.

Action for divorce. Order denying motion to continue cause for recovery of attorney fees and costs, and judgment dismissing the action. Reversed and remanded.

Reversed and remanded. Costs awarded to appellant.

R. W Swagler and Scatterday & Van Duyn, for Appellant.

When there is an evident intention to cheat the attorney and to defraud him of his rights, the proper course for the attorney to pursue is to proceed with the suit in the name of his client, notwithstanding the collusive settlement, for the purpose of collecting his costs. (Hanna v. Island Coal Co., 5 Ind.App. 163, 51 Am. St. 263, 31 N.E. 840; 2 R. C. L. 1002, sec. 81; Coughlin v. New York Cent. & H. R. R. Co., 71 N.Y. 443, 27 Am. Rep. 75; Randall v. Van Wagnen, 115 N.Y. 527, 12 Am. St. 828, 22 N.E. 361, 5 L. R. A. 422; Jackson v. Stearns, 48 Ore. 25, 84 P. 798, 5 L. R. A., N. S., 390, and note; Kiddle v. Kiddle, 90 Neb. 248, Ann. Cas. 1913A, 796, 133 N.W. 181, 36 L. R. A., N. S., 1001; Courtney v. Courtney, 4 Ind.App. 221, 30 N.E. 914; 14 Cyc. 761.)

A husband is liable for legal services rendered his wife who had no independent means in an action for separation instituted by him but discontinued after a reconciliation. ( Hays v. Ledman, 28 Misc. 575, 59 N.Y.S. 687.)

Before judgment the attorney has a lien upon the cause of action itself. After judgment he has a lien upon the judgment into which the cause of action has merged. (Taylor v. St. Louis Transit Co., 198 Mo. 715, 97 S.W. 155.)

Since all the property of plaintiff and defendant is held under existing order of the court, and is, even without such order, under the control and disposition of the court, the attorneys have a definite fund to which the lien has attached. ( Zent v. Sullivan, 47 Wash. 315, 15 Ann. Cas. 19, 91 P. 1089, 13 L. R. A., N. S., 244; 6 C. J. 782.)

H. E. Wallace, for Respondent.

When the wife (plaintiff) in open court admits condonation, and asks that the action be dismissed, as she no longer has an action to be prosecuted, it is not necessary that any money be paid for its prosecution. (Reynolds v. Reynolds, 67 Cal. 176, 7 P. 480; Mudd v. Mudd, 98 Cal. 322, 33 P. 114.)

The allowance was for past services, and under the circumstances was clearly not necessary to enable the wife to prosecute the action. (Lacey v. Lacey, 108 Cal. 45, 40 P. 1056.)

"The allowance looks to the future. There can be no necessity for an allowance to make a defense which has already been made, or solely to pay expenses already incurred." ( Loveren v. Loveren, 100 Cal. 493, 35 P. 87; McCarthy v. McCarthy, 137 N.Y. 500, 33 N.E. 550; Wagner v. Wagner, 34 Minn. 441, 26 N.W. 450; Kuntz v. Kuntz, 80 N.J. Eq. 429, 83 A. 787; Stover v. Stover, 7 Idaho 185, 61 P. 462.)

BUDGE, J. McCarthy and Lee, JJ., concur. DUNN, J., concurring in part and dissenting in part.

OPINION

BUDGE, J.

On November 11, 1915, Clarinda Taylor, wife of B. Z. Taylor, commenced an action for divorce, and for a division of the property, temporary alimony, attorney fees and costs. A restraining order, enjoining her husband from encumbering, transferring or otherwise disposing of his property pending the action was prayed for, and at the same time she asked that a show cause order issue, directing him to appear and show why he should not pay temporary alimony, costs and attorney fees, both of which orders were issued by the court.

Before the day set for the hearing upon the show cause order, a stipulation continuing the hearing was entered into between B. Z. Taylor and counsel for Clarinda Taylor, to the end that an amicable property settlement might be reached by the Taylors without further litigation. Prior to the date fixed for such hearing, Clarinda Taylor decided to abandon her suit and notified her counsel, requesting that the action be dismissed.

On January 29, 1916, a motion to continue the cause for the recovery of attorney fees and costs expended was filed by R. W. Swagler, Esq., and Messrs. Scatterday and Van Duyn, counsel for Mrs. Taylor, and an order was issued by the court, directing B. Z. Taylor to appear and show cause why the attorney fees, costs and expenses should not be paid. A hearing was had on February 3, 1916.

On January 20, 1917, Clarinda Taylor joined with her husband in a motion to dismiss the action, which motion was resisted by her counsel, who filed a claim of lien under the provisions of C. S., sec. 6576, with objections to the dismissal of the action, supported by affidavits setting out, among other things, their employment by Clarinda Taylor, the nature of the services performed by them, that said services were reasonably worth the sum of $ 600, and that they had advanced certain fees and made other disbursements.

A hearing was had on January 27, 1917, and on February 13, 1917, the court overruled the motion for a continuance, and on February 26, 1917, entered its judgment dismissing the action.

This appeal is from the order overruling the motion for a continuance and from the judgment dismissing the action.

The questions presented are, first: Is it within the power of a trial court under the provisions of C. S., sec. 4642 to allow attorney fees for past services in divorce actions? and, second: Are attorneys entitled to a lien upon the cause of action for a decree of divorce to such an extent that the same cannot be dismissed upon motion of the plaintiff or upon agreement of the parties until the lien has been settled or determined? These will be discussed in the order in which they are stated.

C. S., sec. 4642, provides: "While an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife (1) to support herself or her children, or (2) to prosecute or defend the action."

By the term "while an action for divorce is pending" is meant any time from the commencement of the suit until and including the final order disposing of the same. (Brasch v. Brasch, 50 Neb. 73, 69 N.W. 392; Kiddle v. Kiddle, 90 Neb. 248, Ann. Cas. 1913A, 796, 133 N.W. 181, 36 L. R. A., N. S., 1001.)

When, in a divorce case, the wife has incurred liabilities for attorney fees and other expenses of the suit, the trial court may, in its discretion, under the provisions of sec. 4642, supra, after such expenses have been incurred and at any time while the action is pending, upon proper showing being made, order the husband to advance the money to pay them. (Wyatt v. Wyatt, 2 Idaho 236, 10 P. 228; Roby v. Roby, 9 Idaho 371, 3 Ann. Cas. 50, 74 P. 957; Day v. Day, 12 Idaho 556, 10 Ann. Cas. 260, 86 P. 531; Callahan v. Dunn, 30 Idaho 225, 231, 164 P. 356; Donaldson v. Donaldson, 31 Idaho 180, 170 P. 94; Taylor v. Taylor, 70 Ore. 510, 140 P. 999, at 1003.)

In the case of Donaldson v. Donaldson, supra, the action of the trial court in awarding attorney fees to the respondent in the final judgment was assigned as error. That portion of the judgment reads as follows: "It is further ordered, adjudged and decreed that the plaintiff shall have judgment against the defendant for the sum of $ 150 as additional attorney's fees for plaintiff's attorneys, . . . . to be paid to the clerk of the . . . court . . . ., and by the said clerk to be paid to plaintiff's attorneys . . . ."

In construing C. S., sec. 4642, in the majority opinion the court held that: "The right of the court to allow attorney's fees is derived from the statute, and by the terms of the statute can only be put into operation when...