Wick v. Beck

• Decision Date: 28 July 1915
• Docket Number: 29945
• Citation: 153 N.W. 836,171 Iowa 115
• Parties: B. I. WICK, Appellee, v. MARTIN BECK, Appellant
• Court: Iowa Supreme Court

153 N.W. 836

171 Iowa 115

B. I. WICK, Appellee, v. MARTIN BECK, Appellant

No. 29945

Supreme Court of Iowa, Des Moines

July 28, 1915

Appeal from Superior Court of Cedar Rapids.--HON. C. B. ROBBINS Judge.

ACTION by an attorney to recover for legal services rendered the defendant's wife in an action for a divorce brought by the husband against the wife, in which the husband established the grounds alleged for a divorce to be true. From a judgment in favor of the plaintiff for the value of such services, defendant appeals.

Reversed.

M. P Cahill and Lewis Heins, for appellee.

Crosby & Fordyce, for appellant.

GAYNOR J. LADD, EVANS and PRESTON, JJ., concur. DEEMER, C. J., WEAVER and SALINGER, JJ., (dissenting).

OPINION

GAYNOR, J.

This is an action to recover for legal services rendered defendant's wife in an action commenced by her against her husband. The petition alleges:

"That on or about August 14, 1912, this plaintiff was consulted in a professional capacity by Ellen F. Beck with reference to the securing of a divorce for the said Ellen F. Beck from this said defendant. That thereafter, and on or about the 22d day of August, 1912, this plaintiff brought an action for divorce for the said Ellen F. Beck, and against the said Martin Beck, in the district court of Linn county, Iowa. That thereafter and on or about the first day of September, 1912, there was filed by the defendant in said divorce action, an answer and cross-petition; that afterward, on or about September 5, 1912, there was prepared and filed a motion to make more specific, directed against the answer and cross-petition so filed, and thereafter this plaintiff prepared for the said Ellen F. Beck, and at her instance, an answer to the cross-petition of the said Martin Beck. That afterwards the said Ellen F. Beck withdrew her appearance in the said divorce action, as this plaintiff is now informed, but of which fact he had no knowledge at said time, and a decree of divorce was rendered in favor of the defendant on his said cross-petition. That the allegations of the said cross-petition were such as to injure the name and standing of the plaintiff, Ellen Beck, in said divorce action, and that the plaintiff herein acted in good faith in bringing the said action for divorce for the said Ellen F. Beck; was then of the belief, and now states the fact to be that the said Ellen F. Beck had a good cause and sufficient grounds for a divorce from her husband, the defendant herein; that all professional services, as above set out, were rendered by this plaintiff in good faith and upon the request, and at the instance of the then wife of the defendant herein; that said services were necessary for the protection of the good name and reputation of the said Ellen F. Beck, and to procure for her from this defendant means of support and maintenance, said defendant having refused to provide her with the necessaries of life, and having notified grocers and others dealing in necessaries to refuse to his said wife the right to purchase on his credit.

"That the services rendered in behalf of said Ellen F. Beck were reasonably of the value of $ 200, and a more particular statement of the nature of the services performed and the value thereof, is the following, to wit:

August 14, 1912, to consultation and retainer

$ 25.00

To office consultation August 15, 16, 17

30.00

August 21, to drawing petition

25.00

September 3, reading cross-petition and preparing

motion to make more specific

40.00

September 4, 5, office consultation

20.00

To looking up evidence, consultation, preparing answer

to cross-petition

60.00

"That demand has been made by this plaintiff upon the said defendant, Martin Beck, and also upon the said Ellen F. Beck, but that neither party has paid the said sum or any part thereof, and that the total amount thereof is due and unpaid, and that the said claim for services is the property of this plaintiff. Wherefore, plaintiff asks judgment according to the prayer of his original petition against the said Martin Beck in the sum of $ 200, with interest at the rate of six per cent. from December 24, 1913, and for his costs and disbursements in this action."

The defendant filed to plaintiff's petition the following demurrer:

(1) That the allegations of the petition do not entitle the plaintiff to the relief demanded.

(2) That it is shown by said petition that the services claimed for were performed at the instance of Ellen F. Beck, and not at the instance of the husband.

(3) That the petition shows that it has been adjudicated that Ellen F. Beck had no valid cause for divorce.

(4) That the petition further shows that the allegations of the cross-petition of Martin Beck were true, and that Martin Beck was entitled to a divorce.

(5) That the petition shows affirmatively that the services rendered were not necessary, but, on the contrary, were unnecessary.

The demurrer being submitted, the court sustained it as to the first three items of plaintiff's petition, and overruled it as to the last three items, thereby holding that the plaintiff could not recover for services rendered in the action for a divorce commenced by the plaintiff, but could recover for services rendered in the defense of the cross-petition. The defendant elected to stand upon the demurrer and judgment was rendered for the plaintiff against the defendant, for the amount of the last three items, to wit, $ 120. Defendant alone appeals.

The question here is whether or not, under the allegations of this petition, the plaintiff is entitled to recover for services rendered in the defense of the cross-petition. The petition filed by the plaintiff does not state on what grounds Mrs. Beck sought a divorce from her husband. The only allegation is that she filed a petition in which she asked a divorce. Upon the filing of such petition, the defendant appeared and filed an answer and cross-petition, in which he asked affirmative relief against the plaintiff. The petition does not show the grounds on which defendant sought in his cross-petition to obtain a divorce from his wife. It appears that the attorney for Mrs. Beck filed a motion to require the cross-petition to be made more specific. It does not appear whether this motion was sustained or overruled. After the filing of such motion, the plaintiff, as attorney for Mrs. Beck, prepared an answer to the cross-petition, but it does not appear that this was filed. Thereupon, Mrs. Beck withdrew her appearance in the divorce action without consulting the plaintiff herein, and a decree of divorce was rendered against her upon defendant's cross-petition. As to the right of the plaintiff to recover for services rendered Mrs. Beck, in the original proceeding commenced by her, we are not concerned, for the reason that the plaintiff has not appealed, and the judgment of the court, therefore, stands as a verity against his right to so recover. The only question for our consideration is whether or not the plaintiff is, under the showing made, entitled to recover for the services rendered in defense of the cross-petition.

The plaintiff in this suit does not state what the allegations were on which the defendant founded his right to a divorce on the cross-petition. He assumes to say, and gives it as his opinion, that the allegations were such as to injure the name and standing of Ellen Beck; that he rendered the services at her request; that the services were rendered in good faith; that they were necessary for the protection of the good name and reputation of the wife. The further allegations that it was necessary to procure for her the means of support and maintenance, that the defendant had refused to provide his wife with the necessaries of life, and had notified grocers and others to refuse his wife credit, relate to the necessity for commencing the original proceeding, and so avail the plaintiff nothing here.

But two questions are presented on this appeal: First, whether, under the facts stated, the lower court should have allowed the recovery against the defendant for legal services furnished, under the facts stated in the petition which are admitted by the demurrer; second, whether appellee's petition is sufficient in its statements of fact to constitute a good cause of action.

The right of a wife to employ counsel at the expense of her husband, in the prosecution of a suit for divorce against him, has been before this court for consideration in many cases. In Johnson v. Williams, 3 G. Greene, 97, it was squarely held that a husband is not liable by mere implication of law to an attorney for services rendered to his wife in obtaining a divorce. It was there distinctly held that such services were not, in and of themselves, in contemplation of law, the necessaries which the marital relation bound the husband to furnish. At that time, divorce cases were triable to a jury, and the court instructed the jury in the trial of the cause that the defendant was not liable for professional services rendered to the wife of the defendant in procuring a divorce and alimony, if such divorce and alimony are obtained, unless he was employed by the defendant, either in person or agent, or unless the defendant promised to pay, or unless he was ordered to pay for such services by the court. This instruction was approved by this court, and the court said: "Without an expressed or implied promise on the part of the husband to pay the debts of the wife, he is only bound for necessaries."

In law the term "necessaries" is understood to mean not only articles which are of absolute necessity, but also such things as are suitable to the fortune and condition of the person to whom they are supplied. The court then propounded this question: "Are the expenses...