{ "id": 1320437, "name": "Kincheloe v. Merriman", "name_abbreviation": "Kincheloe v. Merriman", "decision_date": "1891-06-06", "docket_number": "", "first_page": "557", "last_page": "560", "citations": [ { "type": "official", "cite": "54 Ark. 557" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "42 N. 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H., 478", "category": "reporters:state", "reporter": "N.H.", "case_ids": [ 4549067 ], "opinion_index": 0, "case_paths": [ "/nh/42/0478-01" ] }, { "cite": "2 Ind., 630", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 1479450 ], "opinion_index": 0, "case_paths": [ "/ind/2/0630-01" ] }, { "cite": "40 Conn., 596", "category": "reporters:state", "reporter": "Conn.", "case_ids": [ 743963 ], "opinion_index": 0, "case_paths": [ "/conn/40/0596-01" ] } ], "analysis": { "cardinality": 424, "char_count": 6762, "ocr_confidence": 0.751, "pagerank": { "raw": 1.596904991132129e-07, "percentile": 0.6831917613729603 }, "sha256": "55b83f04c142cbdb42ad00d613719f4c28f27c8692aed042809549cd65aea4e7", "simhash": "1:00217bf65c81f9f1", "word_count": 1199 }, "last_updated": "2023-07-14T19:10:43.544850+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Kincheloe v. Merriman." ], "opinions": [ { "text": "Hughes, J.\nThe appellee sued the appellant for an at-11 rr t\u00b0rney\u2019s fee for services rendered the wife of appellant in counseling and advising her in reference to a suit which the wife contemplated bringing against the appellant for dissolution of the bonds of matrimony upon the ground of cruel and barbarous treatment of the wife by her husband. Appellee alleged in his complaint that it was absolutely necessary for the wife\u2019s protection and safety that she should have legal advice. The contemplated suit for divorce was compromised, and not instituted. A demurrer to the complaint was overruled, and judgment was rendered for appellee from which the appellant prosecuted this appeal. Was the appellant liable ?\nUnder our statute the allowance of alimony and suit money, pending a suit for divorce, is in the sound discretion -of the court, and, before the court will make the allowance, the wife must show merits. Sec. 2563, Mansf. Dig.; Hecht v. Hecht, 28 Ark., 93 ; Countz v. Countz, 30 Ark., 73. There *is no other provision in our statute in reference to suit money In divorce cases. If the allowance is discretionary only with the court pendente lite, can it be said that the wife has -absolute right to counsel fees in a divorce suit?\nIn 2d Bishop on Marriage and Divorce, section 388, it is \u2022said that \u201cthe English doctrine is, that a legal person who, in good faith and on probable cause, carries on or defends a wife\u2019s divorce suit with her husband can recover at law of the latter the proper compensation for his service and expenses therein; to the extent to which he does not obtain it, by order of the court, in the suit itself.\u201d\nLord Campbell held, in Brown v. Ackroyd, 5 Ellis & Bl., -819, 827, 829, that a wife has authority to pledge her husband\u2019s credit for the costs of a divorce suit, where there are reasonable as well as where there are absolute grounds for instituting the suit. Under such circumstances the suit would be necessary and fit for the wife\u2019s protection, and she would be authorized to employ a proctor, and her husband would be liable for his fees.' And it was said in that case by Crompton, J., that \u201cwhere there is reasonable apprehension of violence, a divorce may be the most effectual protection, and it may be a necessary, within the rule which authorizes a wife, who has left her husband from reasonable apprehension of cruelty, to pledge his credit for what is necessary to her.\u201d\nThis doctrine was confirmed in the court of common pleas, and held to apply, though the petition for divorce was not proceeded with and counsel omitted to pursue the practice \u25a0of the court for obtaining costs, Erie, C. J., saying : \u201c No doubt such costs come under the description of a \u2018necessary.\u2019 The wife pledges her husband\u2019s credit at the beginning of the suit; and I see nothing in the practice of the divorce -court to take away the wife\u2019s common law right.\u201d Rice v. Shepherd, 12 C. B. (N. S.), 332.\nIn the courts in this country there is a diversity of judicial determination upon this question. In 2d Bishop on Marriage and Divorce, section 391, it is said that \u201cthe proposition that neither the obtaining of a divorce nor the resisting one has any relation to her protection as wife, is, as applied to the marriage dissolution, not altogether without reason. And there is a great deal of American authority to this; namely, that the wife\u2019s legal agent cannot recover compensation of the husband for his services in suits for divorce from the bonds of matrimony, whether she is plaintiff or defendant.\u201d Wing v. Hurlburt, 15 Vt., 607; Dorsey v. Goodenow, Wright, 120; Shelton v. Pendleton, 18 Conn., 417; Coffin v. Dunham, 8 Cush., 404; McCullough v. Robinson, 2 Ind., 630; Williams v. Monroe, 18 B. Monroe, 514; Johnson v. Williams, 3 Greene (Ia.), 97 ; Dow v. Eyster, 79 Ill., 254; Cooke v. Newell, 40 Conn., 596; Morrison v. Holt, 42 N. H., 478; Ray v. Adden, 50 N. H., 82.\nWe cannot well understand how a suit for divorce could be necessary, or actually afford protection to the wife against personal abuse upon the part of the husband. A proceeding against him to compel him to keep the peace might be necessary, and might have the desired effect; and for services rendered for the wife in such a proceeding the husband would be liable, on the ground that the wife has the right to pledge her husband\u2019s credit to procure services which are necessary to her protection and safety.\nIn the cases of Glenn v. Hill, 50 Ga., 94; Sprayberry v. Merk, 30 Ga., 81; Gossett v. Patten, 23 Kan., 340, and some others, the husband was held liable for the wife\u2019s counsel fees in an independent action at law, and, in some of the cases, even though the suit for divorce was discontinued or not brought. But the preponderance of authority in the American States is that, for services rendered a wife in a suit for divorce, an attorney cannot recover in an action at law against the husband, for the reason that prosecuting or defending a suit for divorce has no relation to her protection as wife.\nThe court erred in overruling the demurrer to the complaint. The judgment is reversed with directions to sustain the demurrer to the complaint. '", "type": "majority", "author": "Hughes, J." } ], "attorneys": [ "J. H. Harrod for appellant.", "Sam Frauenthal and E. M. Merriman for appellee." ], "corrections": "", "head_matter": "Kincheloe v. Merriman.\nDecided June 6, 1891.\nDivorce\u2014 Wife\u2019s suit money\u2014Husband\u2019s liability.\nAn attorney cannot recover, in an action at law against a husband, for services rendered his wife in a contemplated suit for divorce upon the ground of the husband\u2019s cruelty, since the prosecution of a suit for divorce is not necessary to her protection as a wife.\nAPPEAL from Faulkner Circuit Court.\nJoseph W. Martin, Judge.\nJ. H. Harrod for appellant.\nA husband is not liable to an attorney employed by the wife to obtain a divorce for his fee, even where he obtains the divorce. 32 Ala., 227; 18 Conn.,417; 40 Conn., 596; 79 111., 254; 2 Ind., 630; 18 B. Mon., 514; 8 Cush. (Mass.), 404; 42 N. H., 478; Wright (Ohio), 120; 3 Head (Tenn.), 527; 15 Vt., 607; 3 Iowa, 97; Bish. Mar. & Div., 5th ed., vol. 2, sec. 391; Mansf. Dig., sec. 2563 ; 30 Ark., 73.\nSam Frauenthal and E. M. Merriman for appellee.\n1. A husband is liable to an attorney for his fee, who is employed by his wife to institute proceedings for a divorce, where the grounds were cruel and inhuman treatment, rendering her condition intolerable, and where it was absolutely necessary for her protection and safety that she have legal advice. Citing 24 Ark., 522; 30 Ark., 73 ; Mansf. Dig. sec. 2563; 2 Bish. M. & Div. (6th Ed.), sec. 387; ib., sec. 390; ib., sec. 388; 34 Eng. L. & Eq., 214(217); 50 Ga., 94, 66; 30 Ga., 81; 23 Kans., 340.\n2. It was necessary for the wife\u2019s protection and safety that she have counsel; a necessary for which the husband is bound, i Bish. M. & D., sec. 554 (6th ed.); 42 N. H., 78 (480); 39 id., 123." }, "file_name": "0557-01", "first_page_order": 583, "last_page_order": 586 }