Waters v. Waters

• Citation: 49 Mo. 385
• Parties: WILLIAM H. WATERS, Appellant, v. VIRGINIA B. WATERS, Respondent.
• Decision Date: 29 February 1872
• Court: United States State Supreme Court of Missouri

49 Mo. 385

WILLIAM H. WATERS, Appellant,

v.VIRGINIA B. WATERS, Respondent.

Supreme Court of Missouri.

February Term, 1872.

Appeal from Buchanan Circuit Court.

Strong & Hedenburg, for appellant.

I. The jurisdiction of our courts in matrimonial cases is limited by statute (Doyle v. Doyle, 26 Mo. 545), and neither our statutes nor former court practice authorize taxation of counsel fees either as costs or alimony.

II. No case can be found holding that after dismissal of suit a court can arbitrarily set aside a judgment of dismissal or nonsuit taken by plaintiff and allow counsel fees as costs. Attorneys at law in the courts of Missouri are allowed no fees which are taxed as costs. They look to contracts made with their clients for remuneration for their services. (See Frissell v. Haile, 18 Mo. 18.)

Woodson, Vinyard & Young, for respondent, cited 2 Bish. Marr. 4th ed., §§ 392-3, 396, 398, 400, 402, 405, 407, 415, 416, 418, 420, 424-5, and authorities cited.

BLISS, Judge, delivered the opinion of the court.

Pending a proceeding for divorce, defendant applied for an allowance of $80 as counsel fees for her defense. Before the application was passed upon, the plaintiff dismissed his petition, but the court proceeded to hear and decide the question, and allowed her counsel the sum of $40, which was taxed in the costs against the plaintiff.

By an enactment in 1868, our statute provides that the court may decree alimony pending the suit for divorce in all cases where the same would be just, whether the wife be plaintiff or defendant, and enforce such order in the manner provided by law in other cases. (Wagn. Stat. 535, § 12.) This amendment to the divorce act was doubtless made to meet a defect developed in Martin v. Martin, 33 Mo. 614, where it was held that under the statute as it then stood, alimony could be allowed to the wife only when she is a party plaintiff. In the opinion of the court Judge Dryden treats the right of the wife to alimony pendentelite as an acknowledged common-law right, and one that would be transferred to our courts but for inconsistent legislation upon the subject. In this remark he seems to differ from the views of Judge Scott in Doyle v. Doyle, 26 Mo. 549.

The term alimony in its limited sense means an allowance made to the wife out of the husband's estate for her maintenance, either during a matrimonial suit or at its termination, when she has proved herself entitled to a separate maintenance. (Burrill.) Is the term used in this restricted sense in our statute, or does it also mean the sustenance of the wife in respect to the prosecution or defense of the suit between them? “This sustenance,” says Bishop (§ 387, note), “is in fact a sort of alimony; the one--alimony proper-- being for defraying the ordinary expenses of the wife in the matter of living; the other being for the same purpose in the matter of the suit.” The husband, who has the control of the money out of which, were the parties dwelling together, the wife would be entitled to draw her support, while the wife is without means which she can herself command, should not only be made to aliment the wife as to her food and the like, while the suit is going on, but aliment her also as regards the suit; otherwise she would be denied justice. If the term were used in its more restricted sense it would ordinarily be in the power of the husband to shut the mouth of the wife altogether and drive her out of court, unless supplied by charity with the means of prosecution or defense. All the property belonging to them jointly is in his possession, even though she brought it to him by marriage; she can make no binding contract; those who trust her on her husband's credit do it at their peril (Harshaw v. Merriman, 18 Mo. 106; 25 Mo. 36), and she would be defenseless indeed if the court had no power to relieve her before the termination of her suit. In this view our best courts, whether subjected to any special statute upon the subject or not, have held the husband under obligation to furnish, pending the controversy, out of his estate, in which the wife as such has an interest, not only food and clothing, but the means to protect her rights. Thus, the chancellor, in Daiger v. Daiger, 2 Md. Ch. 337, says: “It is believed that no case can be found in which the wife, living separate from her husband, and without an income competent for her support and the maintenance of the suit, has...