Appellant's suit for divorce and division of property was contested by defendant Minnie Roberts, setting up certain defenses, alleging that she had been compelled to hire an attorney, praying that divorce be denied, and for allowance of a reasonable fee to her attorneys as costs of court. Upon trial, the jury answered "No" to issue 1, reading: "Do you find from a preponderance of the evidence that Plaintiff, R. E. Roberts, has been an actual bona fide inhabitant of the State of Texas for one year next preceding March 3rd, 1944?"; and fixed $900 as a reasonable fee to attorneys for appellee. Said jury verdict resulted in a later dismissal of plaintiff's suit without prejudice; and, in subsequent recitals of the same judgment, the court awarded $900 and interest to defendant, presumably for the use and benefit of her said attorneys.
The appeal is before us without a statement of facts and seeks only a review of the above judgment liability for attorney's fees, grounds of reversal being, in effect: (1) That where a petitioner for divorce is found lacking in the one-year inhabitancy requirement, upon entry of judgment dismissing the bill for divorce without prejudice, all ancillary matters were likewise dismissed and passed out of the case, and the court was without power or authority to enter any further order against him for attorneys' fees; (2) allowance of the recited fee is not such a judgment as could be rendered under defendant's pleading, she praying only "that judgment be entered in behalf of the attorneys signing this answer for their fees and expenses" there being no pleading or prayer for *Page 709 recovery of such fees by her or in her behalf; (3) the court's error in rendering judgment against plaintiff in any amount, for the reason that the $900, if adjudicated against any one, should have been assessed against Mrs. Roberts to be paid out of the money found by the jury to be in her possession or under her control.
Defendant pled in paragraph 5 of the original answer "that by reason of the unlawful and wrongful conduct on the part of the plaintiff in the institution of this suit for divorce, it has been necessary for defendant to employ attorneys to represent her in this action and to protect her legal interest, and that she has employed the attorneys signing this answer and that they have accepted such employment and on numerous occasions have advised this defendant regarding this action and the protection of her legal rights. That by reason thereof, the plaintiff became liable to this defendant and to the attorneys signing this petition for reasonable attorneys fees and expenses, which the defendant alleges to be the sum of $2500.00, and that same should be charged as a part of the cost in this case"; and final prayer was: "for such other relief to which she may be justly entitled." No exceptions were urged to any defensive pleading, or objection made to form of issues submitted in the court's charge. Preliminary recitals of the judgment are that Mrs. Roberts "defended the divorce action of her husband, R. E. Roberts, plaintiff in this cause, in good faith based upon justifiable grounds, and that attorney's fees in the sum of Nine Hundred ($900.00) Dollars, as found by the jury in answer to special issue No. 9, are reasonable and were for necessaries for which the plaintiff husband is liable."
The rule is well settled that where the wife brings or defends a suit for divorce in good faith and on probable cause, her reasonable attorneys' fees are properly chargeable against the husband as a necessary expense incurred in protection of a right given her by law; Speer, Marital Rights, 3d Ed., sec. 638, p. 796; Howard v. LaCoste, Tex. Civ. App. 270 S.W. 181; recoverable either in the main action by the wife or independently by her attorneys upon appropriate allegations and proof. Jacks v. Teague, Tex. Civ. App. 136 S.W.2d 896. Unquestionably, defendant's claim has support in sufficient allegations; and evidence of a valid defense is conclusively shown by the court's independent findings, to say nothing of the jury verdict establishing immaturity of plaintiff's bill.
In the same connection, we disagree with appellant's argument that a dismissal of his suit because of residential disqualification has precluded rendition in favor of the wife for attorneys' fees in the one judgment of dismissal. The court had jurisdiction of the parties. Aucutt v. Aucutt, 122 Tex. 518, 62 S.W.2d 77, 89 A. L. R 1198. A discontinuance of the main suit, though involuntary, did not affect defendant's prayer for affirmative relief in nature of a counterclaim, as to which she had a right of adjudication in the same final judgment; Rule 96, Tex.Rules of Civil Procedure; Jungbecker v. Huber, 101 Tex. 148, 105 S.W. 487; Minnock v. Garrison, Tex. Civ. App. 144 S.W.2d 328. The situation here is not distinguishable in principle from Varn v. Varn, 58 Tex. Civ. App. 595,125 S.W. 639, 641, where, after a voluntary dismissal, the court held: "The pleadings of appellee were sufficient to form a basis for the judgment for attorney's fees, and it has been held in this state that the husband is liable for attorney's fees incurred by the wife in prosecuting a suit for divorce, whether prayed for by the wife in the suit for divorce, or sued for by the attorney of the wife in a separate action. McClelland v. McClelland, Tex. Civ. App. 37 S.W. 350; Ceccato v. Deutschman, 19 Tex. Civ. App. 434, 47 S.W. 739. The propriety of those decisions is not questioned by appellants, but the real ground of their complaint is that they were not permitted by the court to defeat the claim of appellee for attorney's fees incurred in defense of herself in a suit instituted against her by her husband by dismissing the suit, after she had incurred the expense of employing counsel. Appellants proceed throughout their brief on the theory that the suit of W. W. Varn was dismissed, and that some time afterward appellee was awarded a judgment for $500 for attorney's fees. The decree of the court indicates that the judgment for attorney's fees and of dismissal were rendered at one and the same time. It was all done in the same proceeding. Appellee had been brought into court by a petition for divorce filed by her husband; she had answered, setting up a claim against him for attorney's fees, which she alleged were necessary in the employment of an attorney to represent her before the court. *Page 710 The court heard testimony on the subject, and rendered judgment for the attorney's fees. There was no error in his action."
Appellant's main authority, Pappas v. Pappas, Tex. Civ. App.146 S.W.2d 1115, is not considered at all in point. There the court attempted to continue in force petitioner's order for alimony after her lack of statutory residence had been determined upon a plea in abatement and the case dismissed. Of course, under the statute, any order for alimony must be ancillary to a pending suit, Art. 4637, Vernon's Ann.Civ.St.
We overrule the further point that defensive pleadings form an insufficient basis for the attorneys' fees sought. Her allegations above quoted, inclusive of the prayer for such other relief as she may be entitled to, well support the $900 award.
The community property of the parties, according to plaintiff's petition, consisted of real and personal property of a value aggregating between $25,000 and $30,000. Concerning these assets, the jury found that plaintiff had $350 and defendant $3,500 in their respective possessions on date of trial. No issue was submitted as to community debts, net value of same, or as to what property other than money was in possession of plaintiff husband. Appellant finally argues that as a matter of law appellee's attorneys' fees should either be paid by her personally or else out of the community funds found to be in her hands. A recovery of the particular fees from the husband is not authorized by any divorce statute, the wife's right thereto being largely within the discretion of the trial court. They are deemed "necessaries", for which he is held liable. 15 Tex.Jur., Secs. 154, 155, pp. 650-654. Of the cases cited by appellant where a fee eo nomine was denied, the facts were exceptional, and the general rule of liability was expressly recognized. See Rivers v. Rivers, Tex. Civ. App. 133 S.W. 524; Wilson v. Wilson, Tex. Civ. App.231 S.W. 830. Here we have no statement of facts, but instead a jury finding whereby plaintiff's cause of action is characterized as premature. In such state of the record, the trial court was well within its discretion in assessing the resulting expense to defendant by way of attorneys' fees wholly against the husband. 15 T.J. 650; Fasken v. Fasken, Tex. Civ. App. 260 S.W. 698; Becker v. Becker, Tex. Civ. App.299 S.W. 528; Brown v. Brown, Tex. Civ. App. 152 S.W.2d 790.
The judgment under review is in all respects affirmed.