Sweat v. Sweat , 123 Ga. 801 ( 1905 )

Cobb, J.

The code provides that in applications for temporary alimony, “ after hearing both parties, and evidence as to all the circumstances of the parties and as to the fact of marriage, the court shall grant an order allowing such temporary alimony, including expenses of litigation, as the condition of the husband and the facts of the case may justify.” Civil Code, § 2457. The only requirement of the code is that the court shall hear evidence of the marriage and of all the facts and circumstances of the marriage before allowing temporary alimony, which shall include expenses of litigation, under which head fall counsel fees. The judge may hear the testimony of expert witnesses on the valúe of the services of the plaintiff’s counsel. But is he bound to do this ? Counsel fees are allowed as a part of the wife’s maintenance, to enable her to litigate the questions at issue between herself and her husband, and are as necessary as an allowance for support. Sprayberry v. Merk, 30 Ga. 81. In Campbell v. Campbell, 67 Ga. 423, while there was evidence as to the value of the services of counsel, it was held that “ the sums allowed for counsel fees and support pendente lite are dependent on the circumstances of the parties and the facts of the case. . . It is much in the discretion of the chancellor to fix fees and the amount needed for support.” While the judge may hear the evidence of attorneys as to the value of the services of the plaintiff’s counsel, he is not bound by such evidence, but may award a less amount than the services may appear therefrom to be worth. Dicken v. Dicken, 38 Ga. 663, 670. It has also been held that a jury is not bound absolutely by the testimony of an expert witness as to what would be reasonable attorney’s fees in a given case. Baker v. Richmond Works, 105 Ga. 225, And that an auditor would likewise not be so bound. Brown v. Ga. Min. Co., 106 Ga. 518. In Peyre v. Peyre, 79 Cal. 336, it was held: “ The court may require the husband to pay to the wife temporary alimony and a reasonable attorney’s fee; and no testimony is necessary to determine what the amount of the fee should be. The court may determine what is a reasonable fee, from its own experience, and from the facts and circumstances of the case appearing before it; and may base the allowance on the ability of the husband to earn money, though it does not appear that he has money or other property with which to pay the amount allowed.” To the same effect, see Llamosas v. Llamosas, 62 N. Y. 618. A different conclusion seems, however, to have been reached in Jeter v. Jeter, 36 Ala. 391, (7). See also Blair v. Blair, 74 Iowa, 311. The judges of the superior courts of this State are experienced and able lawyers. Before coming to the bench they were for years engaged in the practice. Doubtless most if not all of them participated in the trial of alimony cases. It would be strange if practicing lawyers were more capable' of fixing counsel fees than the judges. Besides, as shown above, it has been expressly decided that the judge is not bound by the estimate placed by attorneys upon the services of their brother attorney in the particular case. Why require such evidence, if the judge can disregard it ? The code requires that he shall examine into all the circum-stances of the case. This would include the financial condition of the husband, the social position of the parties and their previous manner of living, and the needs of the wife. Evidence of these facts affords a sufficient basis for fixing an allowance for temporary alimony, which includes the expenses of litigation. We think that, under the language of the section of the code above quoted, the judge is not bound to hear expert evidence as to counsel fees. Whether the same rule would apply in a case heard before a jury we do not now decide. In the present case the judge could find that the defendant had an income of a thousand dollars a year, and owned property worth nearly four thousand dollars. ' Certainly it was not an abuse of discretion to allow seventy-five dollars as attorney’s fees. The judge could well decide, without the aid of expert testimony, that the services of the plaintiff’s attorneys were worth at least the sum he allowed them.

Judgment affirmed.

All the Jicstices concur, except Simmons,O. J., absent.