Yeiser v. Lowe

• Decision Date: 08 January 1897
• Citation: 69 N.W. 847,50 Neb. 310
• Parties: YEISER v. LOWE.
• Court: Nebraska Supreme Court

50 Neb. 310

69 N.W. 847

YEISER

v.LOWE.

Supreme Court of Nebraska.

Jan. 8, 1897.

Syllabus by the Court.

1. Under section 12, c. 25, Comp. St., the allowance of attorney's fees to the counsel of the wife is ancillary to or an incident of the action for divorce, and a separate suit cannot be maintained against the husband by such attorney to recover for his professional services there rendered to the wife.

2. An attorney's lien cannot be enforced where there is not anything to which such lien can attach.

Error to district court, Douglas county; Ogden, Judge.

Action by John O. Yeiser against Hugh Lowe for legal services. From a judgment for defendant, plaintiff brings error. Affirmed.John O. Yeiser, in pro. per.

Osborn & O'Hanlon, for defendant in error.

NORVAL, J.

John O. Yeiser is an attorney at law, and as such he was employed in 1891 to commence and prosecute a suit for divorce and alimony in the district court of Burt county by Eliza Jane Lowe against her husband, the defendant herein. Mr. Yeiser instituted such suit for the wife on August 6, 1891, and on the 17th day of the same month the defendant filed an answer, denying each and every allegation of the petition, except the marriage of the parties. On August 28, 1891, Mr. Yeiser filed in the case a claim for lien for services in the sum of $1,000, but the defendant had no notice thereof until more than a year afterwards. Application was made in the cause for alimony pendente lite, which was overruled. Subsequently, on September 10, 1891, Mr. Yeiser, at the request of his client, drew an unconditional dismissal of the case, which was filed in court, and the action dismissed. Plaintiff brought this action against the husband to recover for his legal services rendered in the divorce proceeding. From a judgment for the defendant, plaintiff prosecutes error.

The record shows that the defendant never employed plaintiff, or agreed to pay him for his services; that the dismissal of the divorce suit was not the result of any settlement between the husband and wife, or collusion between them. She received nothing from her husband as a condition of withdrawing the action, nor did he ever promise to give her anything therefor. It does not appear that the grounds stated in the petition for divorce were true. The main question in the case is whether, under the facts disclosed by this record, defendant is liable in an action at law to an attorney for services rendered to the wife of the former in prosecuting the action for divorce. We do not think that he is. In an action for divorce, under section 12, c. 25, Comp. St., it is competent for the court to “require the husband to pay any sum necessary to enable the wife to carry on or defend the suit during its pendency, * * * and award execution for the same.” This section of the statute was construed in Burnham v. Tizard, 31 Neb. 781, 48 N. W. 823, and it was held that the allowance of attorney's fees to the wife's counsel is only ancillary to or an incident of an action for divorce, and a separate suit cannot be maintained therefor by the attorney,--in other words, that the remedy given by statute is exclusive. This principle is sustained by the weight of authority. Schouler, Dom. Rel. § 91; Bish. Mar. & Div. (4th Ed.) § 391; Williams v. Monroe, 18 B. Mon. 518;Clarke v. Burke, 65 Wis. 359, 27 N. W. 22;Wing v. Hurlburt, 15 Vt. 614;Shelton v. Pendleton, 18 Conn. 417;McCullough v. Robinson, 2 Ind. 630;Coffin v. Dunham, 8 Cush. 404;Morrison v. Holt, 42 N. H. 478;Ray v. Adden, 50 N. H. 82;Dow v. Eyster, 79 Ill. 256;Pearson v. Darrington, 32 Ala. 229. There are some cases holding that such an action may be maintained, but most of them were not decided under statutes like ours, and we refuse to follow their lead. As to whether an attorney who commences an action for a divorce for a wife against her husband can maintain a separate suit against the husband for his services, in case the divorce...