Wagner v. Wagner

• Decision Date: 21 January 1886
• Citation: 34 Minn. 441
• Parties: AMELIA WAGNER <I>vs.</I> FRANK WAGNER.
• Court: Minnesota Supreme Court

34 Minn. 441

AMELIA WAGNERvs.

FRANK WAGNER.

Supreme Court of Minnesota.

January 21, 1886.

Appeal by defendant from an order of the district court for Hennepin county, Young, J., presiding, making an allowance to plaintiff for counsel fees and expenses in an action for divorce. On December 12, 1884, the court filed its decision in the cause, directing "that the action be dismissed, reserving the right to plaintiff to make application

for such additional allowance as may be necessary to defray the expenses of this litigation." December 15, 1884, plaintiff served notice of motion for such allowance, and on the same day defendant caused judgment of dismissal to be entered.

Robinson & Baker, for appellant.

C. H. Benton, for respondent.

VANDERBURGH, J.

This was an action for a divorce, which, after a trial upon the merits, was dismissed by the court, and judgment subsequently entered accordingly. After the entry of judgment, the court formally granted to plaintiff an allowance for counsel fees, and such expenses of the trial as were not covered by a previous allowance. It appears that the plaintiff contemplated making such motion during the progress of the trial, but at the suggestion of the court, and by consent of counsel, it was postponed, and the court, in its order dismissing the action, reserved "to the plaintiff the right to make application for such additional allowance as may be necessary to defray the expenses of this litigation."

The statute provides that temporary allowances may be made to enable the wife to carry on or defend an action, or for her support during its pendency. Gen. St. 1878, c. 62, § 15. It contemplates that such allowances should be made while the action is pending, but not after its determination. The final judgment of dismissal properly followed the order of dismissal, and the reservation of the right to make the motion was inoperative. The action was no longer pending when the motion was made, and the authority of the court to grant it was at an end.

2. Conceding that the defendant consented, before or during the progress of the trial, that the motion might be subsequently heard, and that that fact is properly shown by the record, which is very indefinite on that point, he did not thereby waive or lose his legal right to oppose the same upon any ground that might exist when it should be made. He might therefore resist it for the reason that the action was determined, and that the jurisdiction of the court had...