Tyler v. Winder ( 1911 )

Sedgwick, J.

The defendant employed the plaintiff as an attorney at law to defend her in an action for divorce brought against her by her husband. The plaintiff brought this action to recover the value of his services rendered in that em-. ployment. The cause was tried in the district court for Madison county without a jury, and a judgment entered for the plaintiff. The defendant has appealed.

A motion was made in this court to dismiss the appeal, but, as we are satisfied that the judgment is right upon the merits, we prefer to place our decision upon that ground. It appears that when the. divorce proceedings were begun this defendant had no property or estate in her own right. The defense is coverture. It is insisted that as the defendant had no property at the time of the employment she could not have incurred liability with reference to her separate property, trade and business, or upon the faith and credit thereof. The construction of ■the married woman’s act of 1871 and amendments thereto has several times been before this court, but the precise question here involved has not perhaps been before considered. In the early case of Webb v. Hoselton, 4 Neb. 308, which was decided in 1876, it was determined that a note given by a married woman and secured by a mortgage on her separate estate was a valid obligation, and that case is followed in Davis v. First Nat. Bank, 5 Neb. 242, and Gregory v. Hartley, 6 Neb. 356, and many later cases. In Grand Island Banking Co. v. Wright, 53 Neb. 574, and Kocher v. Cornell, 59 Neb. 315, it was held that, when a married woman signs a note as surety, it must be made to appear that she did so intending to charge her separate estate. In the latter case the fifth and sixth paragraphs of the syllabus are: “The contract of a married woman can only be enforced against the separate estate which she possessed at the date of the contract. A mere hope of succession to an estate is not property.” In considering the enforcement of a general contract of surety, and in determining whether in making such a contract the intention was to bind the separate property of a married woman, these paragraphs of the syllabus may be considered appropriate. Farmers Bank v. Boyd, 67 Neb. 497; Northwall Co. v. Osgood, 80 Neb. 764, and cases there cited are decided upon similar principles. In Northwall Co. v. Osgood, supra, the defendant, a married woman, was sued upon a note which she signed at the request of her husband, and which was given in payment for a gasoline engine purchased by her husband, in which she had no interest. This court has frequently decided that in such cases, and in all cases where a married woman has signed as surety or in any way for the benefit of another, and not in her own business or for her own purposes, there is no presumption that she agreed thereby to bind her separate estate or property. In Kocher v. Cornell, supra, it is held that when a married woman signs a note as surety, and has no separate estate or property at the time of signing it will be presumed that she did not contract with reference to her property or business.

If she has rights to protect or enforce, and makes contracts reasonably appropriate to enforce or protect them, the case is entirely different. The cases cited do not determine that clioses in action are not property, nor that actions brought to establish rights in property should not bear their own expenses. We are not aware that this court has ever decided that a married woman may not employ an attorney to establish for her a right in property, and create a personal liability in so doing. Such questions are interesting, since the advance of civilization and changed conditions of society have produced so much legislation enlarging the rights and responsibilities of married women. This case, however, largely depends upon the provisions of the statute providing for the action in which the service was rendered. Section 12, ch. 2o, Comp. St. 1909, is as follows: “In every suit brought, either for a divorce or for a separation, the court may in its discretion require the husband to pay any sum necessary to enable the wife to carry on or defend the suit during its pendency; and it may decree costs against either party, and award execution for the same; or it may direct such costs to be paid out of any property sequestered, or in the power of the court, or in the hands of a receiver.” This is an exact duplicate of a section of the Michigan statutes. The statute has been construed by the court of that state in Wolcott v. Patterson, 100 Mich. 227, and other cases.. The Michigan case cited, was unlike the case at bar in one respect. The wife had a separate estate when she employed the attorney, but the reasoning of the court applies to the case we are considering. The court said: “We think the right to contract for such services is necessarily incident to and included in her right to bring suit.” Shakespeare expressed a similar thought: “You take my life when you do take the means whereby I live.” The statute gives her the right to bring an action for divorce in her own name, and provides that the costs may be adjudged against her. The court may under certain circumstances require the husband to pay all costs, including attorney’s fees for both parties. If, however, the husband is worthless, and the wife has no property, the action is denied her, unless she is allowed the “means whereby” she can maintain her suit. If she may bring an action to be released from a worthless husband, who has given her just cause, and she has the ability and energy to acquire means, why should she not be allowed to make such necessary contracts as she is confident she will be able to redeem? If the husband has property, and she is' entitled to divorce and a share of that property, why should she not contract with reference to that property right? We agree with the Michigan court that “the right to contract for such services is necessarily incident to and included in her right to bring suit.” There are many decisions which seem to hold a contrary doctrine. Among them are Cook v. Walton, 38 Ind. 228; Wilson v. Burr, 25 Wend. (N. Y.) 386; McCabe v. Britton, 79 Ind. 225; Drais v. Hogan, 50 Cal. 121; Whipple v. Giles, 55 N. H. 139, cited by defendant. Some of the authorities so holding are quite ancient and seem to be under the influence of the old common law rule Some are under statutes quite different from ours. In others which seem to be more nearly in point the reasoning is not as satisfactory as in the Michigan cases. They do not appear to us to be in harmony with the policy of our state as shown in its legislation.

We think the judgment of the district court is right, and it is

Affirmed.