Phillips v. Simmons — 20 How. Pr. 342

Majority

p. 342

SUPREME COURT.

Alfred A. Phillips and Burton H. Davis agt. Edward Simmons.

Headnote

Where the wife commences an action of divorce against her husband, and pending the litigation the parties become reconciled and settle the action, and live together again as man and wife, the husband is not liable for the costs of her attorneys.^[1]

New York Special Term,

November, 1860.

The complaint states, that in March, 1859, the plaintiffs, being attorneys and counsellors at law, on the retainer of Jane Simmons, the wife of defendant, commenced an action in her favor against defendant, for a divorce, on the ground of cruel and inhuman treatment, and until about August, 1859, acted as attorneys and counsel for said Jane in that action, when the parties thereto became reconciled and settled the action, and have ever since been and are living iogether as man and wife; that their services as such attorneys and counsel for said Jane, were reasonably worth two hundred and fifty dollars, and they expended in carrying on that suit forty-one dollars and seventy-four cents. And that there is due and owing to plaintiffs from defendant two hundred and fifty-seven dollars and seventy-four cents, for which with interest and costs, they demand judgment.

The defendant has demurred to the complaint.

Phillips & Davis, plaintiffs, in person.

P. Cantine, for defendant.

The defendant must have judgment on this demurrer. I can see no possible ground for maintaining the action. Surely a wife cannot be considered (as plaintiffs have attempted to argue,) the agent of her husband, with authority to commence an action against himself, perhaps without cause, and afterwards discontinue it, and thereby make him liable to her attorneys for the costs of the action. While an action for divorce is pending, a wife may, in a proper case, obtain an order that a husband furnish her with means for carrying it on; but when the wife is plaintiff in such an action, and has either discontinued it or been defeated, and judgment been rendered against her, neither she nor her attorneys or counsel can have any claim upon him for the costs or expenses of her fruitless and probably causeless prosecution. (Shelton agt. Pendleton, 18 Connec. R., 417; Wing agt. Hurlburt, 15 Vermont R., 607; Dorsey agt. Goodenow, Wright’s Ohio Rep., 120, are authorities for this decision.)