Rosenhouse v. Ever

CARROLL, Judge. This is an appeal from an order entered in a divorce suit. The defendant wife died while the suit was pending. Later, her attorneys applied for fees for their services, and then instituted this appeal from the order denying their motion for fees. Passing over the question of the right of the attorneys to file an appeal in their names,1 we affirm the order appealed from. The chancellor was eminently correct in concluding that the death of the wife abated the suit, as to divorce and also as to an application for attorney fees which was a matter growing out of and incidental to the cause of action for divorce. Sahler v. Sahler, 154 Fla. 206, 17 So.2d 105; Mc-Kendree v. McKendree, Fla.App.1962, 139 So.2d 173; 1 Am.Jur., Abatement and Revival, § 110. Affirmed. Footnotes [1] In Smith v. Smith, 90 Fla. 824, 107 So. 257, it was held. that although the at-, tornoy for a wife in a divorce suit is the real party interested in obtaining an allowance of attorney fees, the attorney is not a party to the suit.