Benedict v. Holmes

On Application for Rehearing.

Blanchard, J.

Defendant files an application for rehearing and in an earnest argument, submitted by brief, his counsel combats the view entertained by the court, which resulted in holding that where, as in this case, a wife successfully prosecutes against her husband a suit for separation from bed and board and of property (in which suit he, by reconventional demand, prayed similar judgment against her), the fees of her counsel are a charge against the community.

We have given the case careful reconsideration without being- able to arrive at a conclusion different from that announced, and, accordingly, the application for rehearing is refused.

Plaintiffs, on the same day, filed a petition for amendment of the judgment heretofore handed down.

They do not complain of the amount of one thousand dollars as a proper compensation to them for their services as the wife’s attorneys in the suit instituted for separation, but do complain of the opinion and decree in so far as the same held that only one-half of amount qf the fee is recoverable as against the defendant.

Their position is that the court having decided the debt was a claim against the community, it stands on the same footing as any other debt of the community, and the husband, who was its head and master, is bound for the whole, regardless of any settlement he may have made with his wife, subject only to his recourse against her, if he have any, for the recovery of one-half.

They further contend that it is evident from a reading of the act of settlement and compromise between this husband and wife, found in the record, that he intended to give, and Mrs. Holmes to receive, the six thousand dollars (mentioned in that act) net for her share of the community.

It is now considered that the first of these contentions is sound in law and that the second is supported, at least, by the strongest probability. But the first suffices.

The former decree of the court should be amended so as to charge the defendant with the payment of the whole of the one thousand dollars.

It is, accordingly, ordered and decreed that plaintiffs do have and *536recover of the defendant the sum of one thousand dollars, with legal interest from judicial demand, and all costs — with reservation to him of recourse, if any he have, against Mrs. Avaline O. Holmes for recovery of the one-half part thereof.

Breaux, J., dissents in this case, for reasons assigned in a separate opinion.