Mikesell v. Mikesell

The defendant in the court below, appellant here, when served with notice of pendency of suit, caused to be filed in the record her verified petition for an order requiring complainant to pay reasonable fees for her solicitor and showing that she was totally unable to present her defense without the Court granting such order. Inter alia, she alleged:

"And the Petitioner would further show unto the Court that she has been notified by a copy of an Order of Publication in the above cause of the pendency of the same and that she is compelled to obtain the services of a solicitor to represent her therein; that she has no property or estate other than what she earns from week to week as stenographer with a salary of Fifteen ($15.00) Dollars per week, and from that she is supporting herself and her aged mother; that she is and has been ill for the past year and has been burdened with considerable medical expense and doctor bills; that she is unable to earn sufficient to support herself and pay her obligations and other expenses; and that she is unable to pay for the services of a solicitor to represent her in the above cause.

"And Your Petitioner would further show unto the Court that in the Common Pleas Court of the County of Westmoreland, State of Pennsylvania, that the above complainant filed his petition for a divorce on the 18th day of June, 1938, and that a short time later an allowance for support was given the defendant against the complainant, but that the complainant left the jurisdiction of the Court of Common Pleas of Westmoreland County when the Order of Support was given and when he was given notice that the defendant was going to contest his divorce proceedings; that the complainant never complied with the said Order of Support of the Court in any way.

"And Your Petitioner would further show unto the Court that she has a good and sufficient defense to this cause of action, but that it is necessary for her to obtain an Order of the Court requiring complainant to pay for the services of a solicitor in her behalf and to set up and plead such defense properly.

"Your Petitioner would further show unto the Court that the complainant has adequate means to pay counsel fees, expenses, and alimony for that, he has been employed as the manager of a chain store for several years, receiving a substantial salary and a bonus each year, and the Petitioner believes that at the present time he is on leave of absence from the above mentioned position until he attempts to get a divorce from the Court of Florida.

"Wherefore, Your Petitioner respectfully moves the Court to grant her an allowance for counsel fees, and upon the filing of her answer, wherein she will set up and be able to prove a good defense, that the Court make Your Petitioner an allowance for temporary alimony and other expenses."

This Petition presented to the Court justiciable matters to be determined, viz.: (1) whether or not the allegations of the petition were true; (2) whether or not defendant was entitled to have an order of Court requiring complainant to pay counsel fees for defendant, that she might be enabled to present her defense to the Court; (3) whether or not complainant was able to pay such fees. Under this condition it might have been error for the Court to have ignored the petition and to have entered decree proconfesso, because this would have in effect been a denial of the petition and the defendant would have had the right to appeal from such order.

Mr. McCarthy, in Florida Chancery Act, Annotated, 111, says:

"The Clerk should not make an order taking the bill as confessed, where such action involves the exercise of any degree of judicial discretion. In Lukens Gulf Cypress Co. v. Cochran,65 Fla. 305, 61 So. 630, an order pro confesso was entered by the clerk, apparently upon the ground that a second plea was improperly filed after an order overruling a previous plea and fixing the time to answer. The Supreme Court said: ``Undoubtedly, the Clerk had no authority to enter it, with a plea on file to the bill, even though such plea might not have been proper to be filed under the order of the Court. That was a judicial matter to be determined by the Circuit Judge.'"

So it is, the decree should be reversed with directions to vacate the decree pro confesso and to vacate the final decree, to fix time for filing answer and to consider petition for attorneys' fees.

So ordered.

CHAPMAN and WHITFIELD, J.J., concur.

BROWN, J., concurs specially.

TERRELL, C.J., and THOMAS, J., dissent.