State ex rel. Trumbull & Plumley v. Sachs

The opinion of the court was delivered by Hoyt, J. It appears from the petition herein that in a certain action for divorce, pending in the superior court of Jefferson county, a decree was entered dissolving the marriage relation between the parties, and adjudging the wife the sum of $1,500 as her share of the property, and that such sum should be a lien upon certain real estate until the same was paid. That said real estate was sold under said decree, and that the purchaser thereof, instead of paying the money to the sheriff, paid it to said wife, the plaintiff in said divorce proceeding. That said relators, Trumbull & Plumley, were the attorneys for said plaintiff in such proceeding. That they had duly filed in said court a lien for the fee therein alleged to be due for their services. That at the instance of the wife a certain petition had been filed in said court and cause, upon which said court had made an order in substance as follows: “ Upon reading and considering the verified petition of the plaintiff, L. A. Andrews, filed in this court, and on motion of Messrs. Tyler, Plays & Tyler, attorneys for plaintiff in said petition, it is ordered that Messrs. Trumbull & Plumley, attorneys at law, be and appear before the court at chambers, on the 10th day of November, 1891, at 10 o’clock on said day, and to show what, if any, lien they had upon the judgment herein at the time of the sheriff’s sale of real estate by virtue of an execution issued in said cause, and if the court shall decide that they had a lien at that time, they will further show what would be a reasonable fee for their services rendered plaintiff in said cause. Let a copy of this order be served on said attorneys five days before the time fixed for hearing.” That said relators herein appeared specially in said court, and moved to strike from the files thereof said .petition [373] and vacate the order of the court above recited, which said motion was denied by the respondent. And the object of this proceeding was to procure from the court its writ of prohibition commanding the respondent to desist from further action upon said petition and order. The answer of the judge to the alternative writ heretofore issued herein admits the facts substantially as stated above. Upon these facts the contention of the relators is that the action of the court in the making of said order, and its threatened action in pursuance thereof, is absolutely void for want of jurisdiction, and that they have no other plain and adequate remedy, and are, therefore, entitled to the writ in question. Weare unable to agree with this contention. Themoney realized from the sale of the property described in the decree in said divorce cause should have been paid into court, and the case must be considered as though such money were now in the registry thereof. If this is so, it seems clear to us that, whatever may be the rule in an ordinary cause, in a divorce case the court must be held to have complete jurisdiction to dispose of such moneys as it may think just under all the circumstances. Such cases stand upon a different basis than do suits not of this nature. Our statute but reenacts the general rule when it provides that all the property of the respective parties to a divorce proceeding comes into the possession of the court, and is to be disposed of in accordance with its judgment; and while it is true that this provision doubtless relates primarily to the disposition of such property as between the parties to such action, yet we think that such court could not fairly and properly discharge its duties thereunder if it could not go further and dispose of money in the registry of the court, even although the interest of one of the parties to such proceeding in such funds had been divested. A divorce proceeding has many of the characteristics of a proceeding in rem. The court clearly had the right to order [374] the property sold, and having done so, we do not think it is vdthin the power of anyone to so tie the hands of the court that it cannot distribute the funds derived from such sale. We do not now pass upon the question as to whether or not the relators have any other adequate remedy. The peremptory writ of prohibition must be denied. Andebs, O. J., and Stiles and Scott, JJ., concur.