Keath v. Keath

The facts as stated by Doyle, J., need not be here repeated.

There is one question to be here decided:

Where an allowance of attorney fees to plaintiff wife's counsel has been made and taxed as costs, must the judgment be reversed for such error, or may the reviewing court correct the judgment of the trial court by deleting the improper part of the judgment?

We agree that there is no statutory or legal justification for ordering an allowance of attorney fees to be taxed as costs; that Section 11994, General Code, furnishes the basis for the allowance of fees, but does not provide for the fees being taxed as costs.

It therefore follows that the order to tax the attorney fees as part of the costs was beyond the power of the court to make, and for that reason invalid.

Under such circumstances, it seems to me that a reviewing court ought to exercise its constitutionally-granted power of modification, modify the judgment, and affirm it as modified. I do not believe that reviewing courts ought to seize upon all irregularities, merely to accomplish a reversal of a judgment, when, without prejudice to either party, the judgment which the trial court should have rendered can be attained by the aforementioned procedure.

Section 11994, General Code, provides that the court "may grant alimony" to a wife "for * * * her * * * expenses during the suit," and in Stuart v. Stuart, 144 Ohio St. 289,58 N.E.2d 656, the Supreme Court held (p. 290) that "The term `expenses' properly includes attorney fees." An allowance of alimony to plaintiff's attorneys is not authorized by the statute, and the allowance should have been made to the wife for her expenses during the suit.

In this case, if the words "Davis Lipps, as attorneys for" were deleted from the second and third lines of the last paragraph of the entry, and also the words "which sum the court orders to be taxed as additional court costs chargeable to defendant" from the last three lines of said paragraph, there could then be no valid objection to the allowance as made by the court.

I am of the opinion that the entry should be modified as above suggested, and as modified the judgment should be affirmed.

I therefore dissent from the conclusion announced by a majority of the court, and from the opinion, except in so far as agreement is above indicated.