Gertz v. Gertz

Opinion of the Court, by Judd, C. J. The attorney for Anua M. Gertz excepts to a refusal of the Chief Justice to tax his statutory fees. The cases were, first, a suit by Mrs. Gertz against her husband for a separation, in which the Court denied her petition, and, second, a libel for divorce by Mr. Gertz against his wife, which was dismissed by the Court. Upon no theory can the items claimed be taxed against the husband in the wife’s suit for separation, for this suit failed. It has not been the practice of this Court to tax in matrimonial litigation the statutory attorney’s fees, but the Court makes an allowance to the wife’s counsel, if asked for and the circumstances warrant it, and this has been considered to- occupy the place of taxed costs. This practice of the Court being now questioned on this appeal, it seems to us tobe proper and fitting that the suit money ordered to be paid by the husband should take the place of statutory fees. This is the practice in some States of the American Union. See Whipp vs. Whipp, 54 N. H., 282. The rule of Court referred to, “ that costs shall follow the judgment- in all original actions,” certainly does not apply to suits appertaining to the matrimonial relation, for in these the husband, as the only party responsible, has to pay costs whether losing or winning bis case. We consider that the authority of the Court over the allowances [176] for the wife’s expenses of the suit excepts such cases from th© operation of the general rule. G. W. Ashford, for exceptions. Honolulu, August 4, 1884. Exceptions overruled.