84 Neb. 288 | Neb. | 1909
This is an appeal from the allowance of an attorney’s fee in a partition proceeding, -wherein the trial court, as part óf its final decree, caused the following journal entry to be made: “It is further ordered that Burr & Marlay, attorneys, and appearing in this case on behalf of certain heirs, parties hereto, be allowed the sum of $500 as attorney’s fees, the same to be paid by all of said heirs equally, and the same to be paid out of the proceeds of the sale of said property now in the hands of the referees.” The plaintiff and three defendants appeal.
To obtain an understanding of the issues, the following summary of the record is submitted: The petition is in the usual form, and alleges that Rachel Branson, a widow, died intestate in Lancaster county on March 14, 1906, being the owner of certain real estate therein and in
Isaac R. Branson, by his attorneys Burr & Marlay, hereinafter called claimants, filed his separate answer in the partition proceedings on May 13, 1907, and alleged that, besides those mentioned in the petition, there are other and contingent claims named in the statutes that can and may be filed hereafter; admits he had filed a claim which, with interest, amounts to nearly $9,000; admits there are no other debts or claims' filed against said estate at this time; alleges “there is no good reason why said estate should be partitioned at this time; but, if the court is of the opinion that the title would be good and satisfactory to the purchaser who would buy the same in these proceedings, that this answering defendant has no objections thereto, if said estate will bring its full and fair cash market value by forced sale under an order of this court”; admits he has money and personal prop
The record shows that on May 23, 1907, the partition proceedings were tried and “submitted to the court, and passed until May 31 for decree and further appearances,” when Dilworth Carter, for whom no process had been issued, of his own motion entered his voluntary appearance and consented to the decree. On the same day the claimants, as attorneys for Isaac R. Branson, applied for an order requiring plaintiff and all the heirs, except their client Branson, to execute a bond “in the sum of $1,000 each before the partitioning of the property.” In the decree the court ordered the referees to make return on or before August 15, 1907. On July 11, by agreement of attorneys, the time for the return of the referees was modified by an order of the district court so as to allow them to make their report on or before August 22, instead of on August 15, as originally made. On August 22 the referees reported a sale wherein was realized $16,447.70. On September 11 Isaac R. Branson, as administrator, by attorneys other than claimants, objected to the confirmation of the sale of two of the tracts of land because of inadequacy of the amount realized at the sale; that on
On October 7 following, in pursuance of his contention, Isaac It. Branson, by the claimants as his attorneys, filed a motion objecting “to the payment of any money now in the hands * * * of the referees to Zebulon S. Bran-son, Charles M. Branson, Emily B. Carter and Caroline B. Brown *. * * until first a good * * * bond is made * * * and delivered to the clerk * * * by them to indemnify * * * creditors of the estate in * * * at least $4,000 apiece,” and objecting “particularly to the payment of any money to Charles M. Bran-son” because he “is indebted to said estate on his unsecured promissory note in the sum of $1,000,” and more than two years’ unpaid interest, which he is unable to pay; that said Charles M. Branson has no property above his legal exemptions; “and, for all the reasons set forth in tlie following affidavit, this applicant moves the court to require said heirs and each one of them to give bond in the sum of $4,000.” The claimants in their brief invite an inspection of the numerous affidavits in the record, and among them we find one by Isaac B. Branson in support of the above motion, wherein he avers, in substance, that he is plaintiff in “a good and just cause of action” against the estate pending in the district court for Lancaster county, and the sum involved is about $10,000; “that it is absolutely unjust and inequitable * * * to pay out the moneys now in tlie hands of the court without absolute security to pay said indebtedness if affiant is successful in said law suit; that all of the real estate * * * has been sold * * * and the money is now in the hands of this court and subject to its order; that there is nothing of any consequence to pay affiant’s claim in said law action if he is successful therein, save and
The record discloses that claimants on their own behalf filed an affidavit on October 12, 1907, in pursuance of a motion theretofore filed by them, wherein they moved the court for an allowance “as attorneys’ fees for services rendered in the above entitled cause, to be paid out of the fund now in the hands of the court subject to distribution.” In their affidavit the claimants state, in substance, their employment by their client “to see to it that proper parties were made in this action; that proper bonds were given by all the heirs in these proceedings to secure alleged creditors of the estate whose claims have been- filed and where suits are pending; that one creditor has a claim amounting to about the sum of
From an inspection of the entire record we incline to the belief that the learned trial court, in allowing the fee complained of, did so upon the theory that attorney’s fees in a partition proceeding extend to and include the services of attorneys in a contest over the distribution of the proceeds of the sale, and that such fees are properly chargeable as costs in the case. To this theory we cannot give our assent. To do so would be to open a door to a species of adventurous litigation that would in some instances terminate only with the entire absorption of the estate involved.
It is vigorously urged by claimants that the partition suit was amicable and their fee reasonable, and upon these grounds they urge the justice of their cause: The disposal of the first part of their contention absolves us from the necessity of discussing the reasonableness of their fee. Section 841 of the code is as follows: “All the costs of the proceedings in partition shall be paid in the first instance by the plaintiffs, but eventually by all the
The real purpose of the appearance of claimants in behalf of their client in the partition proceedings we believe is disclosed in appellees’ brief, wherein the claimants say they were employed “to generally protect the rights of. Isaac R. Branson in these proceedings.” Sufficient appears in the pleadings, motions and affidavits to convince us that the partition proceedings were not amicable in the sense to which this and other jurisdictions are committed in this branch of legal procedure, nor in the sense in which that term is ordinarily used. The answer ap
The claimants contend that the action of the trial court in allowing the fees complained of is not properly reviewable because of failure to file a motion to retax costs. We do not believe this point is well taken. The claimants cite none, and we know of no authorities that will support their contention. We doubt if upon principle it can be maintained. The authorities generally hold, as pointed out by appellants’ counsel in his argument, that a motion to retax costs is proper where the taxation is by the clerk, but that it does not apply where an allowance has been made by the court in the form of a judgment, as in the case at bar, the distinction being that the latter is the act of the court and reviewable on appeal, while the former is a ministerial act of the clerk which may be corrected by the court upon motion. The question is properly presented in the record by motion for a new trial. Meade Plumbing, H. & L. Co. v. Irwin, 77 Neb. 385; Smith v. Bartlett, 78 Neb. 359; Ainley v. American Mutual Fire Ins. Co., 113 Ia. 709; Ivey v. Gilder, 119 Ala. 495.
Counsel for appellants contends that the trial court erred in rendering its judgment for the fees of defendants’ counsel in the names of the attorneys, instead of in the name of the principal, and cites some authorities that uphold this doctrine, but the point is somewhat technical, and as we have disposed of the case upon other grounds
After a careful examination of tbe record, we are convinced that tbe judgment of tbe district court must be, and it hereby is, reversed and remanded for further proceedings in accordance with law.
Reversed.