Zent v. Sullivan

• Decision Date: 11 October 1907
• Citation: 47 Wash. 315,91 P. 1088
• Parties: ZENT v. SULLIVAN et al.
• Court: Washington Supreme Court

91 P. 1088

47 Wash. 315

ZENT v. SULLIVAN et al.

Supreme Court of Washington

October 11, 1907

Appeal from Superior Court, Adams County; W. T. Warren, Judge.

Action by D. W. Zent against Maggie Sullivan and another. From a judgment for defendants, plaintiff appeals. Affirmed.

Zent, Lovell & Hamilton, for appellant.

O. R Holcomb, for respondents.

RUDKIN J.

On the 14th day of January, 1906, the plaintiff entered into a written contract with the defendant, Maggie Sullivan, whereby he agreed to commence and diligently prosecute an action for divorce in favor of said Maggie Sullivan against her husband John C. Sullivan, for co-defendant herein, and on her part said Maggie Sullivan agreed that the plaintiff should receive for his services in that behalf the sum of $500, or $250 in the event that such action should be dismissed before final judgment, such sums to be in addition to any sums allowed or awarded by the court in the divorce proceedings. On the following day the divorce action was commenced by the filing of the complaint and the service of a summons, but the action was thereafter dismissed by consent of the parties before final judgment. This action was thereupon commenced against both the husband and wife to recover the stipulated fee. The plaintiff proved the execution of the contract for the fee by the defendant Maggie Sullivan, the commencement and dismissal of the action for divorce, offered in evidence the contract and the files in the divorce action, and rested. A motion for nonsuit interposed by the husband at this stage was sustained, and, from the judgment of nonsuit, the present appeal is prosecuted.

There is a conflict of authority on the question of the husband's liability for counsel fees incurred by the wife in connection with divorce proceedings, whether she be plaintiff or defendant. In Alabama, Arkansas, Connecticut Illinois, Indiana, Kentucky, Massachusetts, Missouri Nebraska, New Hampshire, Vermont, and Wisconsin the rule of nonliability is asserted without qualification. Pearson v. Darrington, 32 Ala. 227; Kincheloe v. Merriman, 54 Ark. 557, 16 S.W. 578, 26 Am. St. Rep. 60; Shelton v. Pendleton, 18 Conn. 417; Dow v. Eyster, 79 Ill. 254; McCullough v. Robinson, 2 Ind. 630; Williams v. Monroe, 18 B. Mon. (Ky.) 514; Coffin v. Dunham, 8 Cush. (Mass.) 404, 54 Am. Dec. 769; Isbell v. Weiss, 60 Mo.App. 54; Yeiser v. Lowe, 50 Neb. 310, 69 N.W. 847; Morrison v. Holt, 42 N.H. 478, 80 Am. Dec. 120; Wing v. Hurlburt, 15 Vt. 607, 40 Am. Dec. 695; Clarke v. Burke, 65 Wis. 359, 27 N.W. 22, 56 Am. Rep. 631. Thus, in Shelton v. Pendleton, supra, decided in 1847, the court said: 'This demand of the plaintiffs has no support from any precedent to be found by us in this country or elsewhere.' And in Coffin v. Dunham, supra, decided in 1851, Shaw, C.J., said: 'This action is without precedent in this commonwealth, and contrary to the practice and course of decisions.' On the other hand, in the following more recent cases the right of recovery is sustained, with certain qualifications and limitations: Ottaway v. Hamilton, 3 C. P. D. 398; Stocken v. Patrick, 29 L. T. S. 507; Sprayberry v. Merk, 30 Ga. 81, 76 Am. Dec. 637; Porter v. Briggs, 38 Iowa, 166, 18 Am. Rep. 27; Preston v. Johnson, 65 Iowa, 285, 21 N.W. 606; Clyde v. Peavy, 74 Iowa, 47, 36 N.W. 883; McCurley v. Stockbridge, 62 Md. 422, 50 Am. Rep. 229; Langbein v. Schneider, 16 N.Y.S. 943, 27 Abb. N.C. 228; Hahn v. Rogers, 69 N.Y.S. 926, 34 Misc. 549; Ceccato v. Deutschman, 19 Tex.Civ.App. 434, 47 S.W. 739; Dodd v. Hein, 26 Tex.Civ.App. 164, 62 S.W. 811; Peck v. Marling, 22 W. V. 708. In Johnson v. Williams, 3 G. Greene, 98, 54 Am. Dec. 491, decided in 1851, the Supreme Court of Iowa said: 'We find no case where the husband has been sued and a recovery had upon the ground of necessaries.' In Porter v. Briggs, supra, the court later permitted a recovery by the wife's attorney against the husband, where the wife had been sued for a divorce on the ground of her adultery. And in the still later case of Preston v. Johnson, supra, the court seems to recognize the right of the attorney to recover against the husband in all cases, subject to the single requirement that he acted in good faith. It will thus be seen that the clear weight of authority is against the attorney's right of recovery in such cases, and this much the appellant concedes.

It certainly cannot be said as a universal rule that expenses incurred by the wife in obtaining or attempning to obtain a divorce from her husband are for necessaries, as that term has been uniformly defined by the courts. On the other hand if the law made no other provision for the prosecution or defense of such actions by the wife, there would be strong, and perhaps controlling, reasons for holding in some individual cases that the expenses incurred were necessary for the protection of the wife, and that she had implied authority to pledge the husband's credit for their payment. But our statute makes very liberal provision for the wife in such cases. Section 5722, Ballinger's Ann. Codes & St., provides that 'pending the action for divorce the court, or judge thereof, may make, and by attachment enforce, such orders for the disposition of the persons, property and children of the parties as may be deemed right and proper, and...