Yoder v. Yoder
| Decision Date | 07 February 1919 |
| Docket Number | 14993. |
| Court | Washington Supreme Court |
| Parties | YODER v. YODER. |
Department 2.
Appeal from Superior Court, Stevens County; C. H. Neal, Judge.
Suit for divorce by J. E. Yoder against Edith Yoder. From a final order allowing temporary alimony and counsel fees against plaintiff, he appeals. Motion made to vacate, set aside, and annul the final order appealed from by reason of settlement between the parties. Motion denied, and order affirmed.
W. W. Zent, of Spokane, and F. M. Turner, of Northport, for appellant.
Turner Nuzum & Nuzum, of Spokane, for respondent.
Appellant on August 7, 1918, filed his complaint in the superior court against respondent, praying for a divorce, alleging two statutory grounds in two separate causes of action. August 27, 1918, respondent filed her answer, admitting the marriage, denying the grounds alleged for a divorce in toto and in detail, prayed for the dismissal of the action, and at the same time filed her motion, supported by affidavits, for temporary alimony, suit money, and attorneys' fees, to all of which appellant replied. This motion being heard by the court on August 28, 1918, on the pleadings, affidavits and counter affidavits, the trial court made and entered an order allowing temporary alimony in the sum of $200 per month from August 1, 1918, the first month's installment to be paid instanter and thereafter on the 1st day of each month $1,500 suit money to be paid to respondent's attorneys or into the registry of the court, on September 3, 1918, and to be disbursed by them in preparing her defense; and the sum of $3,000 attorneys' fees to be paid into the registry of the court or to respondent's attorneys or their order, on September 3, 1918.
The court reserved the power to make other and further allowances for suit money and attorneys' fees either pendente lite or at the final hearing, as justice might require.
From this order appellant forthwith appealed and gave his appeal and supersedeas bonds in the sum fixed by the court.
The cause pending here on appeal and a notice to dismiss the appeal was set to be heard on December 17, 1918. On December 9, 1918, respondent made her affidavit to the effect that she and her husband, the appellant, had voluntarily settled compromised, and adjusted all their differences, resumed their marital relations, were again living together as man and wife, and that she had so notified her attorneys, Messrs. Turner, Nuzum & Nuzum, in writing, on December 9, 1918, and dismissed them as her attorneys and notified them not to appear further in her behalf; that she 'is ready, able, and willing to settle with her attorneys for all compensation due them for services rendered her in said cause,' etc. Appellant's attorneys presented their motion to vacate, set aside, and hold for naught the order of the lower court appealed from, upon the day of the hearing, and supported the same by the affidavit above mentioned of respondent, and affidavit of appellant to the effect that the parties had voluntarily and amicably settled, adjusted, and compromised all their differences involved in the action and resumed the relations of husband and wife. A written consent signed by respondent was also filed at the same time 'consenting and stipulating that the motion of appellant to vacate and set aside the order appealed from may be granted' by this court, and counsel for appellant also suggest that the entire controversy is limited by the fact that this or the lower court has no jurisdiction further than to vacate and set aside the order complained of, although not abandoning the appeal on the merits. They also earnestly insist that the attorneys who represented respondent have been discharged and have no status before the court.
On December 5, 1918, prior to notice of discharge, Messrs. Turner, Nuzum & Nuzum filed in the superior court where the cause was brought a written notice and claim of lien as attorneys for their fees in the proceeding upon all funds ordered to be paid into the registry of the court under the order of August 28th 'by virtue of services rendered under special agreement with defendant and whereby they were to receive as compensation from her as attorneys in the action all sums which the court should allow as attorneys' fees, either on the preliminary order or on final decree and which they were to accept as their compensation.'
No part of the attorneys' fees or suit money has been paid to the attorneys who represented respondent or into court for them.
The situation now is that both appellant and respondent are asking the reversal, or the annulment, of the order appealed from, without first satisfying respondent's attorneys of record, and respondent, in effect, asks that result through the attorneys for appellant. While she has made affidavit that she is 'ready, able, and willing to pay all compensation due the attorneys' who represented her, she has not done so; and she, while they duly represented her under proper authority, invoked the jurisdiction of the court having the subject-matter in its jurisdiction, to compel the payment of her attorneys for their services pending the litigation in part, and for the expense of her defense, out of the property of the plaintiff, her husband. In so proceeding and in support of her application, she made affidavit that she had no money or means, but was penniless and wholly unable to provide suit money or attorneys' fees, while her husband was possessed of property of the value of a million dollars or more.
The allegations against respondent were very defamatory, and she made a very strong showing, in support of her application, that she was wholly innocent of the charges that her husband was the dupe of business associates and of a conspiracy, of which she was being made the victim, that her defense was in good faith, that she desired no divorce but desired reconciliation with her husband and the resumption of the marriage relations, and that her proper defense would entail very great expense and the procuring of evidence over a vast stretch of territory in and out of this state, and that $10,000 would be a reasonable sum to allow her attorneys and for suit money, preliminarily. At the hearing on the application there were several affidavits and counter affidavits...
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