Price, Sullivan and Leonard. The opinion of the court was delivered by Price, S.j.a.d.
[70 NJSuper Page 514] The single question presented for decision on this appeal is whether plaintiff's attorneys may, in their own interest, despite their client's abandonment of the appeal, continue the prosecution thereof in an endeavor to reverse the trial court's refusal to grant plaintiff's application for counsel fees and costs and to direct the payment thereof by defendant.
By the appeal, initially taken herein on February 11, 1961, plaintiff sought to reverse an order of the Superior Court, Chancery Division, entered January 24, 1961, denying her motion to amend a judgment, dated May 5, 1949, so as to require defendant to pay increased sums for the support and maintenance of the minor son of the parties, then and now in plaintiff's custody by virtue of the aforesaid judgment. The judgment had awarded a divorce to plaintiff on the basis of a finding that defendant had deserted her. Despite plaintiff's subsequent abandonment of the aforesaid appeal, of which action the clerk of this court was at her request advised in writing by her attorneys on August 30, 1961, the latter contemporaneously asserted their intention of continuing the prosecution thereof for the purpose of challenging the propriety of that portion of the trial court's aforesaid order referable to counsel fees and costs. Defendant's contention that plaintiff's attorneys have no standing to prosecute the appeal presents the issue to be resolved.
In a supplemental brief filed with this court under date of October 26, 1961, plaintiff's attorneys stated that although they believed that their "right to appeal was safeguarded because the original Notice of Appeal challenged the entire order * * *, to meet the argument that counsel must be named as an appellant, an amended Notice of Appeal," dated October 26, 1961, "is being submitted forthwith for filing." The "Amended Notice of Appeal" stated that plaintiff's attorneys "hereby appeal to the Appellate Division of the Superior Court of New Jersey, nunc pro tunc , from an Order entered in the Superior Court of New Jersey, Chancery Division, dated January 24, 1961, wherein the application of the plaintiff for counsel fees and costs was denied."
Defendant challenges the filing of such amended notice of appeal by plaintiff's attorneys in their own name on the eve of oral argument, months after the initial appeal was taken and weeks after the abandonment thereof by plaintiff, and without any sanction therefor under the rules of this court. Defendant's position is well taken. The asserted
right to file such amended notice of appeal is rejected and its filing hereby is invalidated.
We turn to the attorneys' basic contention that, as plaintiff initially appealed from the entire judgment, they may, despite the abandonment of the appeal by her, continue to prosecute that portion thereof dealing with the aforesaid disallowance of counsel fees and costs.
In support of their position plaintiff's attorneys rely chiefly on the case of Lane v. Rushmore , 123 N.J. Eq. 531 (Ch. 1938), affirmed 125 N.J. Eq. 310 (E. & A. 1939), cert. denied 307 U.S. 636, 59 S. Ct. 1033, 83 L. Ed. 1518 (1939). The cited case furnishes no support for the course of action here pursued.
In Rushmore Mr. Lane, solicitor for Mrs. Rushmore in a matrimonial action instituted by her and which had been concluded, sought to enjoin the prosecution of an action at law, brought by Rushmore against him and Mrs. Rushmore, in which action Rushmore charged that they had conspired to institute and prosecute "in bad faith and with dishonest purpose and by fraudulent means * * * matrimonial causes against him." (123 N.J. Eq. , at p. 533.) In Mr. Lane's aforesaid action to enjoin the suit at law he alleged that the entry of an order for counsel fees in the matrimonial action constituted an adjudication that his conduct had been ethical. Rushmore contended that the award of counsel fees in the matrimonial action was not res judicata of the good faith of the wife's attorney, because, inter alia , the attorney was not a party to that action (Rushmore, supra , 123 N.J. Eq. , at p. 540). The court characterized Rushmore's contention as "somewhat misleading as it affects the instant case" and refused to accept it "as a wholly correct statement." The court said (at p. 542):
"* * * It is true that a solicitor in a cause is not a party to it in the same sense as a complainant or defendant, but he is a party thereto in his own right, as an 'unpaid solicitor.'
In matters relating to the allowance of counsel fees, the solicitor is regarded as a party. If his participation in the cause is determined to be in bad faith, he is not entitled to and will not be allowed a counsel fee as compensation. As already indicated hereinabove the allowance of a counsel fee to Mr. Lane was in fact ...