This case, as above noticed, is ancillary to Taylor v. Taylor, Ala.Sup., 37 So.2d 645.1 On original consideration we thought the total solicitors' fee allowed for complainant was excessive and reduced it. On rehearing we are correcting that reduction to some extent.
In rehearing the main case, we have said on the question in decision this day rendered:
"* * * In respect to attorneys' fees, we considered the cases together on submission, and decided that four hundred dollars was a reasonable attorney's fee in the entire matter: that is to say, fees for the representation of the wife on her petition for maintenance pendente lite; trial of the cause in the court below, and representation on appeal to this Court. Upon reconsideration, however, we have reached the conclusion that the allowance of two hundred dollars for representing the wife in presenting her petition for maintenance pendente lite, and two hundred dollars for the trial in the court below were not excessive.
"* * * there is no exact formula for fixing attorneys' fees in matters of this kind. But there is well established authority to the effect that ordinarily fifty percent of the amount allowed for services rendered in the trial court may be allowed for services rendered on appeal. — See, Wilson v. Wilson, 198 Miss. 334, 22 So.2d 161, 23 So.2d 303. While not committing this Court to such a formula in all cases, we have upon reconsideration, the Court sitting *Page 391 en banc, concluded that such an allowance may properly be made in this cause."
It results, therefore, that an allowance of $200 for the appeal fee will be allowed and it is so ordered.
Some rehearing argument seems to contend that the court should be guided by the minimum schedule of fees adopted by the local bar association in determining the question. We are in full sympathy with efforts of the local bar to standardize fees and this deliverance is in no wise a trenchment on any established fee rates.
The vital difficulty with such an unusual position, though, so far as the court may act in the matter, is, first, we are asked to take judicial notice of that which is not judicially before us, namely, the minimum bar fees of the local association, in adjudicating rights of a party litigant and, next, the court is governed in the instant consideration by long and soundly established standards in making an allowance of such fees. (We note that the trial court must have recognized the principle since he also disregarded the minimum bar rates [mentioned in briefs] in his fixation of the appeal fee.)
Such allowances are "solely for the wife's benefit * * * her attorney's right to fee is derivative * * * solicitor's fees in such suits were regarded as a part of her temporary alimony, allowed as such, and as being necessary for the maintenance of her suit * * * 'and not to or for the benefit of her solicitors * * *.' " Johnson et al. v. Gerald, 216 Ala. 581, 582, 583,113 So. 447, 448, 59 A.L.R. 348, and cases cited.
The sole postulate on which any allowance for the wife can properly be made is the financial ability of the husband to pay. "Maintenance, not beyond the husband's means, is all thelaw can enforce." (Emphasis supplied.) Murray v. Murray,84 Ala. 363, 365, 4 So. 239, 240.
In the light of these guiding standards, we think the solicitors' fee for the appeal as above stated to be as much as the exigencies of the case could warrant.
Writ granted conditionally.
Opinion modified and extended and rehearing denied.
BROWN, FOSTER, LIVINGSTON, LAWSON, SIMPSON, and STAKELY, JJ., concur.
1 Ante, p. 374.