McClure v. Donovan

WILSON, J.

This appeal is from an order denying defendant’s motion for an allowance of attorneys’ fees in an action for annulment of marriage, the appeal from the judgment in which has been affirmed in an opinion this day filed

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(Cal.App.), [195 P.2d 901].

When the trial of the cause began on September 10, 1946, defendant made an oral motion, without previous notice, for an allowance of attorneys’ fees and costs. Plaintiff objected on the ground that no notice of the motion had been served. It was suggested that it might be stipulated that an order to

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show cause had been filed and a hearing be had on a later date. Plaintiff declined to join in such stipulation and demanded a formal notice with supporting affidavits. It was then stipulated that defendant might file an application for an allowance on which the court would rule if plaintiff offered objection. On September 12, the third day of the trial, defendant filed her motion for suit money and attorneys’ fees which was noticed for hearing on September 17. The hearing was continued to September 30, at which time the court announced an award •of $350 for fees and expenses. On October 1, a minute order was entered awarding that amount “to finance the defense” of the action, the court reserving “the right to make further allowances to said defendant for the said purpose. ’ ’ In making the order the court said that defendant was entitled to funds with which to procure witnesses and that “As to attorneys’ fees, of course, that will have to go over. There is no order to show cause pendente lite to the extent it is being defended, on the other side. It is merely a request that on notice an order be made.”

On February 8,1947, more than three months after the completion of the trial, defendant filed a notice of motion for an allowance of “additional attorneys’ fees” on the ground that “said attorneys have rendered services reasonably worth far in excess of the sum heretofore allowed.” The notice was accompanied by affidavits itemizing the services rendered. The motion was heard on February 24, and taken under advisement. On May 19, the court made an order denying the motion. The appeal is from the latter order.