Concurring in Part and Dissenting in Part. — I am in accord with the views expressed in the majority opinion except as to the holding touching the matter of attorney’s fees, but in that portion of the opinion I am unable to concur.
This court has heretofore adhered to the view that attorney fees may be properly allowed in a divorce suit and has actually awarded such fees in cases where the services of the attorney had been rendered prior to the order awarding such fees. (Roby v. Roby, 9 Ida. 371, 3 Ann. Cas. 50, 74 Pac. 957; Day v. Day, 12 Ida. 556, 10 Ann. Cas. 260, 86 Pac. 531.) The supreme court of Oregon in a well-considered case has announced the following rule: “When, in a divorce ease, the wife has incurred liabilities for attorney’s fees, and *189other expenses of the suit, the trial court may, after such expenses have been incurred, by order, compel the husband to advance the money to pay them, in a proper case..... (Schulz v. Schulz, 128 Wis. 28, 107 N. W. 302; Courtney v. Courtney, 4 Ind. App. 221, 30 N. E. 914; Woodward v. Woodward, 84 Mo. App. 328; Lanvy v. Catron, 5 N. M. 373, 23 Pac. 777; Waters v. Waters, 49 Mo. 385; J ones v. Jones, 111 Ill. App. 396; Thorndike v. Thorndike, 1 Wash. Ter. 175.)
“There are cases holding the reverse of the above proposition, but we think that the rule stated supra is the better one. A wife, sued for divorce, may employ counsel to attend to the ease for her, and, at any time before the final decree in the case is granted, the court may, in its discretion, require the husband to pay for the services so rendered, although the order requiring such payment be granted after the services of counsel have been rendered.” (Italics mine.) (Taylor v. Taylor, 70 Or. 510, 134 Pac. 1183, 140 Pac. 999-1003. See, also, Lake v. Lake, 17 Nev. 230, 30 Pac. 878.)
There is nothing in the language of our statute which requires a different holding. It provides, Rev. Codes, sec. 2662: “While an action for divorce is pending, the court may, in its discretion, require the husband to pay as alimony any money necessary to enable the wife to support herself or her children, or to prosecute or defend the action.” (Italics mine.)
It is apparent from the language here used that the awarding of attorney fees in such cases is given into the discretion of the trial court and that that court may at any time while the action is pending require the husband to pay for such services as may be necessary to enable her to prosecute or defend the action. The trial court is certainly in a position to know whether or not the wife has need of such services and whether or not the circumstances are such that the husband ought to be required to pay for them, but it does not follow that he could ultimately and equitably determine the entire amount of such fees until all of the services had been performed and the case was ready to be disposed of.
*190I desire particularly to dissent from that portion of the majority opinion reading as follows:
“It does not appear that any other or additional application for attorney’s fees was made. If such application had been made and the court had postponed action thereon pending a hearing of the cause, it might be said that respondent was enabled to secure counsel to assist her in prosecuting her action upon the strength of the pending application. In that event we have no doubt the court would be authorized to make an order at the time of entry of the judgment for the allowance of such attorney’s fees as he should find to be just. But where, as in this case, there is no application pending, and the wife has prosecuted her action to a judgment, it cannot be said that the allowance is made to enable her to prosecute or defend the action, but the allowance is clearly for services already rendered.” ■
In my opinion a sufficient answer to the view just quoted is to be found in the respondent’s complaint which was the first instrument filed in the action. Therein it is alleged, paragraph 8: “Plaintiff alleges that she is in indigent circumstances, and wholly dependent upon her own labor, and her friends and relatives for her support, that she is in ill health, and unable to earn her own livelihood and is dependent upon the charity of her friends for support.” And in the prayer respondent demands, paragraph 3: “That the defendant be required to pay a reasonable sum into court to defray the expense of this suit and for counsel fees, and that he pay the plaintiff such further sum for alimony as to the court may seem just for her support during the pendency of this action.”
This is certainly an application to the court for such attorney fees as may be needed to properly prosecute the action, and in'my opinion no other form of application is required under the statute, and the mere fact that the respondent made an additional application and received a temporary award before the cause was tried does not alter the situation nor deprive the trial court of the discretion which the statute has expressly given it to make such an award upon'the *191whole ease and in the final decree as it may appear to be just and reasonable under all of the attendant circumstances. I am of the opinion, therefore, that the judgment in this respect should not be modified, as there is no contention and nothing in the record to make it appear that the amount awarded was unjust or unreasonable or an abuse of the court’s discretion under all the facts and circumstances disclosed.