REES v. REES

Hugh V. Wall, of Brookhaven, and Robertson Robertson, of Jackson, for appellee on motion.

Solicitor's fees should be allowed in this court.

Hall v. Hall, 27 So. 636, 77 Miss. 741; Everett v. Everett, 81 So. 417, 119 Miss. 627; Brown v. Brown, 85 So. 180, 123 Miss. 125.

The rule, though not invariable, of this court where fees are allowable is that this court will allow only one-half as much for services in this court as was allowed for services in the case in the lower court.

Walters v. Walters, 177 So. 507, 180 Miss. 268.

The stenographer's notes should be stricken.

Section 725 of the Mississippi Code of 1930 (now chapter 236 of the Laws of 1936) requires that: ". . . any person desiring to appeal the case shall notify the court reporter in writing within 10 days after the adjournment of court of the fact that a copy of the notes is desired."

The ten-day requirement has been in the law on the subject continuously since the enactment of chapter 145 of the Laws of 1920. Prior to that, chapter 111 of the Laws of 1910 was the law on the subject and provided that the notice to the stenographer should be given "in writing within 30 days of the adjournment of the court."

Young v. Alexander et al., 122 Miss. 643, 84 So. 697.

In the case at bar, the decree appealed from was signed and entered September 28th. The notice to the stenographer to transcribe his notes is shown at page 53 of the record and is dated October 9, 1939, and the certificate by the attorney as to mailing shows that the notice was mailed, postage prepaid, on October 9, 1939. This was not within the 10 days required by statute but was 11 or more days. The mailing of the notice on the 9th would, in ordinary course of mail, mean that the stenographer probably did not get the notice until October 10th, i.e., 12 days after decree.

Drew v. Caston, 132 So. 736, 162 Miss. 851; Jackson Opera House Co. et al. v. Cox, 191 So. 665.

We respectfully submit that, in the case at bar, the statute was not complied with; that the stenographer's transcript of the evidence filed herein was not made up pursuant to notice required by law and is therefore a nullity, and therefore there is nothing on which the court can act, and the appeal should be dismissed.

Brooks v. State (Miss.), 173 So. 409; Stewart v. State (Miss.), 174 So. 579.

The appeal should be dismissed. This is an appeal granted from an interlocutory order or decree, and the right to the appeal must be found, if at all, in section 14 of the Mississippi Code of 1930. The annotations to this section, brought down to date, are numerous, and we feel that it is unnecessary to catalogue them here. The real issues in the case at bar are the divorce and the custody of the little girl. The granting of this appeal has delayed and will delay the trial of these issues and the entering of a final decree.

Rea v. Smith, 160 Miss. 848, 133 So. 125; Stirling et al. v. Whitney Nat. Bank et al., 170 Miss. 674, 150 So. 654; Randall v. Randall, 156 Miss. 656, 126 So. 484; 3 C.J. 616; 4 C.J.S. 343; Steam Canal-Boat Sydney, etc. v. Providence Washington Ins. Co., 139 U.S. 331, 11 S.Ct. 620, 35 L.Ed. 177; Handy et al. v. City of New Orleans, 1 So. 593; State ex rel. v. Fowler, 6 So. 602; Griffith's Chan. Practice, page 421. Wm. Harold Cox, of Jackson, for appellant, on motion.

Counsel labor under the misapprehension that the appeal was taken to settle the principles of the case. On the contrary, the appeal was authorized and properly allowed by the trial court under section 14, Mississippi Code 1930, which plaintly provides that such an appeal may be granted "from any interlocutory order or decree whereby money is required to be paid, or the possession of property changed, etc." If the decree were one on demurrer or motion, it would not be allowable under this statute, unless the appeal would settle all of the controlling principles of the case. This is not such a case, and the authorities cited by appellee are not in point.

The next ground of appellee's motion is that the notice to the stenographer to transcribe his notes was not given within ten days after entry of the decree on September 28, 1939. Section 725, Mississippi Code 1930, provides that such notice is to be given in writing "within ten days after the adjournment of court." It is submitted with deference that this clause must mean within ten days after the adjournment of a regular term, or after date of a valid decree entered in vacation.

Newman Lbr. Co. v. Pace, 102 So. 570, 137 Miss. 504.

It is not enough to say that appellant did not object to the trial in vacation since such failure to object to such trial is not tantamount to a consent thereto.

Miss. State Highway Dept. v. Haynes, 139 So. 168, 162 Miss. 216; Morris v. Trussell, 109 So. 854, 144 Miss. 343.

It follows that since the order appealed from was entered in vacation on September 28, 1939, without the consent of the parties, it was invalid, and the notice to the stenographer was timely. The time within such notice must be given would certainly not commence to run prior to the adjournment of a regular term of court, nor prior to the entry of a valid order in vacation.

In either event, however, these notes have already become a part of the record in this cause. The notes were duly and properly approved by both counsel on December 15, 1939, prior to the filing of the motion in this court to strike such notes.

Sec. 726, Miss. Code 1930.

The record already stands made and approved in the manner provided and contemplated by statute. The notice to the stenographer while possibly requisite in some instances, was entirely obviated, and if never given, was dispensed with in the instant case by the approval of these notes.

In Cooper v. Martin, 102 So. 851, it was held that a record for the Supreme Court for the purpose of an appeal may be made by agreement of the parties as well as by compliance with the statute governing appeals.

Humphrey et al. v. Crocow Hdw. Co., 140 So. 690, 163 Miss. 490; McGee v. Cahaba Const. Co., 87 So. 481, 125 Miss. 227; Hicks Mercantile Co. v. Musgrove, 67 So. 213, 108 Miss. 776.

The next matter is that of appellee's motion for attorney's fees. My distinguished opponents have indeed rendered valuable and untiring service in this matter, and I always feel some embarrassment in making any sort of an attack on fees awarded counsel in such cases. There is no doubt of the power of this court to award attorney's fees in proper cases. Counsel argue that this court should award fees in the amount of one-half of the award made by the lower court. That argument presupposes the entry of a valid award by the lower court. Counsel are certainly entitled to be paid for their services. It is our position that appellee should pay them. She has not contented herself with the employment of just one very able counsel, but she has employed two different firms of very distinguished lawyers for the prosecution of this action. If appellee may employ two firms of attorney's and charge appellant therewith, then she could employ six more lawyers as a means of burdening and embarrassing this appellant for whom she has formed a very apparent and profound dislike. The trial court in effect found from the facts stated that Mrs. Rees was herself earning as much as Mr. Rees, and the chancellor therefore found that she was not unable to provide payment for her attorneys.

Unless the lower court found that appellee was unable by reason of her poverty to prosecute this action, the lower court was without any authority to make any allowance to her for such purpose.

Parker v. Parker, 14 So. 459, 71 Miss. 164; Miller v. Miller, 159 So. 112, 173 Miss. 44.

Now, if the trial court were without authority to make such award, as it was, on the evidence and record, then this court would likewise be without authority to make any such award of attorneys' fees to appellee for the prosecution of this action.

Wm. Harold Cox, for appellant on merits.

The appellant first complains here of the order of the trial court awarding the summary custody of the child of the marriage to appellee. This court has several times held that an injunction without notice is absolutely void. This is a proceeding whereunder and whereby the father was dispossessed of his own child by summary process of the lower court without any sort of opportunity to be heard in opposition thereto, and the lower court even enjoined the father from interfering with the mother's custody of the child, all without notice to him or an opportunity afforded him to be heard thereon even to this good day. No bond was required of appellee for this injunction. It is submitted with deference that the decree not only violates all provisions of law for due process, but is contrary to the plain provisions of section 1863, Mississippi Code 1930, which awards the equal charge and custody of the child to both parents. It is submitted that the appellant was certainly entitled to be heard on this important question, and if he had been heard thereon that it was the duty of the lower court to make no order which so plainly impinged upon this statute.

In Morris v. Trussell, 109 So. 854, 144 Miss. 343, this court held that the fact that appellant appeared and contested appellee's motion was not equivalent to a consent that appellee's motion be heard alone in vacation.

The trial court in effect found that appellee was financially able to prosecute her own action. The rule is that fees should not be allowed appellee under such circumstances unless she were otherwise unable to prosecute the suit.

Ross v. Ross, 42 So. 382, 89 Miss. 66.

The same rule appears to obtain with reference to the allowance of attorneys' fees as obtains on the question of the allowance of alimony pendente lite.

Evans v. Evans, 88 So. 481, 126 Miss. 1.

The next obstacle to the award of attorneys' fees is that the bill of complaint states no grounds for divorce, and that the court is not privileged to award attorneys' fees for the prosecution of a suit where the complainant states no ground for relief.

Porter v. Porter, 41 Miss. 116; Elam v. Elam, 91 So. 702, 129 Miss. 36.

The complainant undertakes to set out the ground of cruel and inhuman treatment to obtain a divorce. The court will notice from a reading of the complaint, that the appellee charged, purely as a conclusion of the pleader, that appellant was guilty of cruel and inhuman treatment. The only facts charged in the bill have been held by this court to be insufficient to constitute cruel and inhuman treatment. At most, a charge of incompatibility is set out in the bill, and it may be assumed that the proof under this complaint would be very similar to that in the case of Humber v. Humber, 109 Miss. 216, 68 So. 161.

The allowance in this case under the facts and circumstances shown in this record was improper. The appellee employed two able and distinguished firms of attorneys to prosecute her suit. She needed only one firm of attorneys, and is not privileged to employ more than competent counsel at appellant's expense if she were entitled to any award whatever in this case.

Parker v. Parker, 14 So. 459, 71 Miss. 164.

Hugh V. Wall, and Robertson Robertson, for appellee, on merits.

The child in this case is a seven year old girl. The chancellor has awarded to appellant her custody for certain hours of certain days, and to the appellee her custody for certain hours of certain days. This modification order was, as it recites, after conference by the chancellor with the solicitors for appellee and appellant. Neither of us was entirely satisfied; but the chancellor did the best he could for the child. The chancellor is not manifestly wrong.

Even where a wife is guilty of gross misconduct, she will be granted alimony pendente lite.

Elam v. Elam, 129 Miss. 36, 91 So. 702.

Appellant says the $200 fee allowed was too much; that the allowance was that large because two lawyers represent appellee. We thought that $500 should have been allowed, as in McNeil v. McNeil (Miss.), 90 So. 327, to "meet the requirements for attorneys fees as a temporary proposition" and that an additional amount should be allowed on final hearing. There is nothing in the decree or anywhere in the record and surely not in the meager allowance to indicate that the chancellor was trying to provide a sufficient fee for two lawyers.

19 C.J. 237, par. 558.