Mann v. Mann

KERRIGAN, J.

June 15, 1906, plaintiff commenced an action for divorce. At that time there were two children of

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the parties—a girl, Celia, of the age of thirteen years, and a boy, Allen, of the age of eleven years. When the complaint was filed a restraining .order was issued, directed to the Phoenix Insurance Company of London. This company had issued a policy of insurance for $1,500, covering property of the plaintiff and defendant, which property had been destroyed by fire April 10, 1906. This cause was tried August 20, 1906, and after the plaintiff had introduced her testimony the court granted defendant’s motion for a nonsuit. This order was entered upon the minutes on August 20, 1906, and on the same day entered on the register of actions in the office of the county clerk. The court stated at the time the motion for a nonsuit was granted that the restraining order, under which the money due on the insurance policy was being held, would not be released, as the court had previously agreed to make provision for the payment of plaintiff’s counsel fee out of said money, and that it would, at a later date, entertain a motion to make provision for the support of plaintiff and her minor daughter. September 14, 1906, the attorneys for the respective parties hereto met in the chambers of the trial judge, and the attorney for the defendant requested the judge to sign a formal judgment of non-suit, and to vacate the restraining order. The request was granted without objection from the attorney for the plaintiff and upon representation by Mr. Jacob Samuels, defendant’s attorney, that Samuels would collect the money due on said insurance policy, and have the same in court September 28, 1906, which was the day set for the hearing of the motion to make provision for the maintenance of the plaintiff and the said minor daughter. Defendant was not present at the meeting on September 14, 1906, and it does not appear that he ever authorized his attorney to enter into smy agreement whereby he should be bound to pay any money. Subsequently, and without the knowledge of his attorney, the defendant obtained a certified copy of the order releasing the insurance money, collected the same, and refused to make it subject to the order of the court. September 28, 1906, the court made an order, directing the defendant to pay forthwith to plaintiff the sum of $150 for the maintenance of herself and the said minor daughter, the sum of $75 for plaintiff’s counsel fees, and a further sum of $150 per month commencing October 28, 1906, for the further maintenance and