There is no difficulty in assenting to the propositions that a wife may sue her husband for the protection of her property, or her individual rights; that "necessaries" incurred and paid by her are the husband's liabilities, adjustable in settlement of their estate; that the wife may contract with another for "necessaries" and pledge to such other party in reference thereto the credit of her husband; and that courts may impound the community or the husband's separate property for payment thereof according to the actual necessities of the case. But such necessities — attorney's fees or whatever they may be — incurred and unpaid by the wife, must be recovered by the party rendering the service, or furnishing the "necessities", in an independent action. Attorney's fees in a divorce suit, as other "necessities", are not recoverable by the wife where the divorce is denied, and same cannot be allowed to the attorneys rendering the service, or the party furnishing the necessities, recoverable as costs of the suit.
The services of an attorney to represent the wife in a suit for divorce may be a "necessity", regardless of whether divorce is granted or refused, for which the husband may be liable; but where the attorney's fees are contractual and necessary for the preservation of the wife's rights, such cannot be recovered by the wife, and, if recoverable at all, must be recovered by the attorneys rendering the service.
In Hill v. Hill, Tex. Civ. App. 125 S.W. 91, 93, the husband sued for divorce; the wife contested the suit and, ancillary thereto, sought allowance for attorney's fees necessarily incurred by her in defending the divorce suit and the protection of the community property of their marriage. The divorce was denied, adjudging the costs, including an allowance to the wife of $150 as attorney's fees, against her husband, declaring same to be a lien on the personal property belonging to the community estate. The husband appealed. The Texarkana Court of Civil Appeals, Judge Willson writing the opinion, said "Having refused to grant a divorce to the parties, it was error for the court to *Page 711 render a judgment in favor of the wife against the husband for attorney's fees, and it was error at appellee's insistence to adjudge such attorney's fees and costs to be a charge against the personal property referred to, and to direct its sale in satisfaction of such fees and costs of the suit. If the indebtedness incurred by the wife was an indebtedness she was authorized to incur, it became a charge against her husband, and not against her, and would be recoverable in a suit against the husband by the parties in whose favor it was incurred. It could notbe recovered by her for them." (Italics supplied.)
On motion for rehearing, in discussing the relative differences in the facts and conclusions in that case and in McClelland v. McClelland, Tex. Civ. App. 37 S.W. 350, and Woeltz v. Woeltz, Tex. Civ. App. 57 S.W. 905, the court said: "In McClelland v. McClelland a divorce as prayed for by the wife was granted and she was held to be entitled to recover as against her former husband reasonable fees of attorneys representing her in the suit. A similar ruling on similar facts was made in Woeltz v. Woeltz. In the case before us the divorce sought by the parties was notgranted, but, on the contrary, was refused. Because, and only because, a divorce as prayed for by them was refused, and they continued to be husband and wife, as they were before the suit was commenced, we held the recovery for attorney's fees in favor of the wife against her husband to be erroneous. * * * They were recoverable, if at all, because it was necessary for the wife to incur them in the preservation of rights given her by the law (Citing authorities). The right to sue for and recover them, if they were recoverable as `necessaries,' did not arise in favor of the wife, but in favor of the attorneys who rendered the services — just as it would have arisen in their favor and not in her favor, if, instead of rendering her service as attorneys, they had furnished to her food, or clothing, or medicines. It will hardly be contended that, had a dealer furnished to her such necessaries as food, clothing, or medicine, she could maintain a suit therefor against her husband. The cause of action against the husband in such a case would be in favor of the dealer alone, just as it is in this case in favor of the attorneys alone."
It may well be conceded that the overwhelming weight of authorities in Texas is to the effect that in cases where divorce is granted, hence the marital status between the spouses no longer exists, the wife is entitled to recover in her own name attorney's fees against her former husband on the ground that they were "necessaries"; and courts may in such cases make the allowance to the divorced wife either in the divorce suit or in an independent action. McClelland v. McClelland, Tex. Civ. App.37 S.W. 350; Bord v. Stubbs, 22 Tex. Civ. App. 242, 54 S.W. 633, 634; Woeltz v. Woeltz, Tex. Civ. App. 57 S.W. 905; Hill v. Hill, supra; McLean v. Randell, Tex. Civ. App. 135 S.W. 1116; Yeager v. Bradley, Tex. Civ. App. 226 S.W. 1079; Fasken v. Fasken, Tex. Civ. App. 260 S.W. 698; Howard v. LaCoste, Tex. Civ. App. 270 S.W. 181; Becker v. Becker, Tex. Civ. App. 299 S.W. 528; Ashworth v. Edwards, Tex. Civ. App. 5 S.W.2d 776. But where the divorce is denied, or the divorce suit dismissed, — it matters not for what cause — neither the wife nor her attorney can recover attorney's fees in the divorce action. Indeed, the attorney rendering the service under contract with the wife may maintain an independent action against the husband or wife for the reasonable value of his services.
In the case of Jones v. Jones, 128 Tex. 309, 97 S.W.2d 949, the wife entered suit for divorce and for partition of property, alimony and attorney's fees, alleging as to the latter "that she has contracted and agreed to pay her attorney who brings this suit the sum of $750.00, which she alleges to be reasonable and necessary for bringing and prosecuting this suit in her behalf." In the prayer of the petition, she prays that "her attorney have judgment against the defendant for the sum of $750.00 for bringing and prosecuting this suit in her behalf." The petition was signed by her attorney, otherwise his name does not appear in the body of the petition, or in the prayer. He was not a party to the suit, and manifestly could not be; the divorce suit was personal to the parties. Before the case was called for trial, there was a reconciliation between the husband and wife, and the suit for divorce was dismissed. The trial court, without objection or exception, heard testimony on the issue of attorney's fees incurred by the wife as a necessity, and thereafter entered judgment against the husband in favor of the attorney for the fees due him. This court, in majority opinion, held that, under the *Page 712 facts and circumstances in that case, the attorney was due the fee, affirmed the judgment of the court below, and, on motion for rehearing, certified the involved question to the Supreme Court. The Supreme Court (97 S.W.2d 949), in effect, held, in answer to the certified questions, that the attorney's fees were not allowable after the divorce suit was dismissed, and that the attorney in the divorce suit could not recover the fee in his own name after the suit had been abandoned, quoting with approval the opinion in Kelly v. Gross, Tex. Civ. App. 293 S.W. 325, 326, reaffirmed in Kelly v. Gross, Tex. Civ. App. 4 S.W.2d 296, writ refused: "No other party has any right, nor can he acquire the right, to inject himself, or his claim upon either of the parties, into the divorce action, which is purely personal to those parties. It naturally follows that, when those parties compose their differences, effect a reconciliation, and move for a dismissal of the action, the court before whom it is pending has no other alternative than to grant the motion and dismiss, without the least regard to any pecuniary interest third parties may have acquired as contingent upon the granting of a divorce. This is true as a matter of public policy, which cannot contemplate any rule which would permit outsiders to speculate upon the contingency of a disrupted marital union. We hold that, in the face of the reconciliation between the parties and their prayer for dismissal, the trial court had no power, in this divorce suit, to enforce appellants' contract with Mrs. Gross for a contingent interest in the property which might have been recovered by her in the event of a divorce."
In the Gross case, among other things pertinent here, the court said [4 S.W.2d 298]: "After holding that if for any reason a decree of divorce was not rendered the court was without power to disturb the existing status of the community property as between husband and wife * * *."
In the case at bar the majority hinge their conclusion that the wife was entitled to the award of $900 attorneys' fees with interest against the husband, "presumably for the use and benefit of her said attorneys", on the strength of the opinion in Varn v. Varn, 58 Tex. Civ. App. 595,125 S.W. 639, where the divorce suit was dismissed and in the judgment attorneys' fees awarded to the wife against her husband. That case was decided in 1910, more than 35 years ago; and, in a careful review of all the authorities in Texas since that time, none has followed the conclusion as therein pronounced — that the wife could maintain a suit against her undivorced husband. Many authorities hold to the effect that suits for attorney's fees may be maintained by the wife only after the marital status has been abrogated by divorce, and not before. Indeed, the attorneys who have rendered services in protection of the wife's rights, are creditors of the husband, on the ground that such services were "necessaries"; hence the wife had the right to pledge her credit and that of her husband to the attorneys for payment of their fees. In such cases the husband and attorneys assume the relation of debtor and creditors; but such relation can seldom, if ever, be created between the wife and her husband as to permit suit by either against the other.
"The marital relation is one in which society and the state are vitally interested. The public policy relating thereto is to foster and protect it, prevent separation and divorce, and encourage the parties to live together. Public policy strongly favors reconciliation of the parties, abandonment of divorce proceedings, and resumption of the marriage relation. 9 R.C.L. title `Divorce and Separation,' §§ 11 and 19. Contracts between parties to a divorce proceeding and his or her attorney have frequently been held to be promotive of divorce and declared to be illegal. Contracts whereby the attorney's fee is made dependent on the granting of the divorce, or measured by or payable out of the alimony recovered, have been so condemned. 9 R.C.L. title `Divorce and Separation,' §§ 13 and 17." Kelly v. Gross, supra.
The marital relation of husband and wife continues till it has been lawfully dissolved by death or divorce, and any monetary judgment recovered by either, husband or wife, other than that exempt to them as their separate estates, is, by Texas jurisprudence, a community judgment; any execution issued under such a judgment, and levy made on community property, is but a levy, in part, upon the judgment plaintiff's own property. In other words, if the wife securing a judgment against her husband, as here, causes execution to issue and levy to be made on their community property, such action tantamounts to her securing, in part, a judgment against herself and levying upon her own community property, which evidently she cannot do. Such a suit would be against public *Page 713 policy of this State, conducive to prevent the husband and wife from resumption of their marriage relation.
Furthermore, the wife cannot maintain a suit against her husband and enforce a judgment against their community estate; and she cannot maintain a suit "for the use and benefit" of any creditor who, forsooth, had performed service or furnished "necessaries" to her and her family. Such unpaid obligations are due to the creditors, and not to the wife; hence she has no legal right, either in a divorce suit or a separate action, to maintain a suit in her name for their benefit. The proposition is elemental, — no party can bring a suit unless the involved transaction begets the relation of debtor and creditor. The right to contract by the wife is limited; thus she cannot contract to bring a suit against her husband for attorneys representing her in court, and she cannot maintain such suit for her own benefit. The attorneys must stand, as in any other case, upon their own footing, maintain their suit free from the cantankerous disclosures so often displayed in divorce actions, which in many cases are calculated to impose an excess judgment on the husband as a punishment for his acts and conduct, instead of fair remuneration for actual services rendered.
The judgment of the court below is based upon the verdict of the jury that $900 was a reasonable fee for defendant's attorneys for their services, and upon motion of the defendant for the court to render and enter in said cause a judgment therefor in her favor. The judgment recites: "That the defendant, Mrs. Minnie Roberts, is entitled to a judgment against the plaintiff, R. E. Roberts, for the sum of Nine Hundred ($900.00) Dollars, together with interest from date of judgment; and that the action of plaintiff, R. E. Roberts, for a divorce and partition of community property should be in all things dismissed. It is therefore ordered, adjudged and decreed by the court that the suit of the plaintiff, R. E. Roberts, for divorce and partition of community property be and the same is hereby in all things dismissed, without prejudice. It is further ordered by the court that the defendant, Mrs. Minnie Roberts, do have and recover of and from the plaintiff, R. E. Roberts, the sum of Nine Hundred ($900.00) Dollars, together with interest from date at the rate of six percent per annum, for which let execution issue."
Evidently the judgment recitals were in favor of the wife against the husband, with execution to issue, and levy to be made on their community unpartitioned property.
The jury found that the wife had in her possession and under her control $3,500 of community property, and that the husband had $350; hence, if her attorneys' fees were "necessaries" as to create a liability against her husband, collectible out of community property, she was in position to liquidate the debt; thus the judgment in her favor becomes as "Sounding brass and a tinkling cymbal." Such judgment, if paid to the wife, would be of no avail to the attorneys rendering the services, unless, in turn, the wife paid the attorneys their fees. Clearly such judgment would not be res adjudicata to a subsequent action by the attorneys against the husband for "necessaries" rendered the wife.
I reluctantly dissent; however, my concept is that courts should have no guide but the law, and no thought but duty; the judgment of the court below as to attorneys' fees allowed the wife against her undivorced husband should be reversed and here rendered denying such allowance; and that, too, without prejudice to the rights of the attorneys to maintain an independent action against the husband and wife, or either of them, for services honorably rendered in the suit.