Kendall v. Kendall

The statute authorizes the court, in cases of this kind, to require the husband to pay any sums necessary to carry on the suit during its pendency; and the court may also decree costs against either party, and award execution for the same, ¿sc. (2 R. S. 148, § 57.) But it was not the intention of the legislature that the wife should recover the whole amount of taxable costs at the termination of the suit, where a sum had been advanced to her, or to her solicitor, or next friend, on account of such costs, pendente lite. Nor was it intended that the allowance to her for costs and expenses of the suit should be confined to the mere taxable costs, as between party and party. In litigated cases, where the wife is necessarily subjected to extra expenses and counsel fees, in addition to the taxable costs as between party and party, the whole amount, which *612has been advanced to her, pendente lite, for costs and expenses, should not be deducted from the ordinary bill of costs as between party and party to which she is entitled under the decree. But the husband should only be allowed for the balance of his advances, after deducting therefrom the necessary expenditures of the wife, for counsel fees &c., which are not included in the ordinary taxed bill. The decree in. such cases should, therefore, direct the taxing officer, upon the taxation of the costs of the wife, under the decree, to allow to the husband the amount of his advances, pendente lite, in diminution of the taxable costs; after deducting from such advances such reasonable expenses and counsel fees as have been paid by the wife, and which are not included in the ordinary taxed bill. Or the court itself should determine whether any, and if any, what allowance should be made for extra expenses and counsel fees beyond the taxable costs; and direct the residue of the advances which have been made by the husband to be deducted, by the taxing officer, upon the taxation of costs under the decree.

In ordinary cases, where the husband is the defendant, and admits the allegations in the complainant’s bill, either by answer or by allowing it to be taken as confessed against him, the customary taxable costs are sufficient to cover all the usual expenses of the suit, except the extra expense which may be necessary to procure the attendance of witnesses before the master, in addition to the allowance made by law to them. And that is all that should be allowed in such cases, unless it is shown that something special has occurred in the cause to render the employment of counsel, other than the regular solicitor, necessary.

In the present case, it appears there was a litigation before the master in relation to alimony, which might require the employment of counsel. But if a proper allegation of faculties was filed with the master, and the answer of the husband taken to the same, as should have been done before proceeding with the reference to ascertain the proper amount of alimony, the whole business of the reference ought to have been concluded in less than six days, instead of being protracted for six months. Under the circumstances of this case, I think the allowance of a counsel *613fee of $25, in addition to the taxable costs, should have been' allowed to be retained out of the moneys advanced by the husband pendente lite. But the allowance of the whole $100 for that purpose would have been unreasonable and oppressive.

The order appealed from must therefore be modified accordingly. And neither party is to have costs as against the other, either on this appeal or upon the original application to the vice chancellor to have the advance of the husband deducted from the taxed bill.

Proceedings remitted.