Jones v. Jones , 99 S.W.2d 1012 ( 1936 )

JONES, Chief Justice.

This was a suit for divorce filed by the wife, Mollie S. Jones, against her husband, Wayne Jones. In addition to the divorce, the wife sought a partition of the community property, praying that a 52-acre farm be set aside to her as her homestead. The petition contains allegations which, if established in court, would have entitled her to the relief sought. In addition to the prayer for a divorce and partition of property, Mrs. Jones also, by proper allegations, sought to recover in the suit judgment for attorney’s fee in the sum of $750.

After some preliminary hearings, in reference to alimony and to require her husband to file an inventory of the property, the suit came up regularly for trial. When called, both parties were present in person and by their respective attorneys, and announced to the court that a reconciliation had taken place between them, and that the suit would not be further prosecuted, and asked for its dismissal. At the request of the attorney for Mrs. Jones, the court did not dismiss the suit, but, without objection from the other side, heard evidence to support the allegation in Mrs. Jones’ petition for an attorney’s fee. After the hearing of the evidence in respect to the attorney’s fee, the court allowed an attorney’s fee of $250, and taxed all costs and the attorney’s fee against the husband, Wayne Jones.

An appeal was perfected to this court, and, in a written opifiion, the case was reversed and the suit dismissed, on the ground that, after the reconciliation and the announcement by the parties to the trial court that the suit would not be further prosecuted, the court had no jurisdiction other than to dismiss the suit.

On a motion for rehearing filed by the attorney for Mrs. 'Jones, the majority of this court, in a written opinion, set aside the judgment of dismissal and affirmed the judgment of the lower court. The writer of the original opinion dissented from the holding of the majority and adhered to the correctness of the original opinion. Rending action on the motion for rehearing filed by the husband, the following questions were certified to the Supreme Court:

“Question No. 1: Under the pleadings and facts above stated, was it error for the court, after the parties had announced the reconciliation and a desire for the suit to be dismissed, and without objection by appellant, to hear evidence and allow the attorney fee?

“Question No. 2: Can an attorney for an indigent wife in a divorce suit recover a fee for his services in his own name, after the divorce suit has been abandoned, because of a reconciliation of the parties?”

Question No. 1 was answered by the Supreme Court in the affirmative and question No. 2 in the negative. On the answer to the certified questions, the case must be reversed and suit dismissed. The opinion of the Supreme Court, in answer to the certified questions, is styled Jones v. Jones, and is reported in 97 S.W.(2d) 949, 950. The two opinions written by this court are withdrawn.

Motion for rehearing is granted, the judgment of affirmance set aside, and the cause dismissed.

Reversed and dismissed.