176 Mo. App. 260 | Mo. Ct. App. | 1913
This appeal was taken from an order allowing an attorney’s fee of $720 in a partition suit.
The plaintiff and defendants were owners as tenants in common of eighty acres of land in Jasper conn
After tbe order of sale was made, all tbe parties owning this property agreed to form a corporation for tbe purpose of taking title to tbe land in suit. This arrangement was perfected and stock in tbe corporation was issued to each of tbe parties for an amount bearing the proportion to- tbe whole amount of tbe stock that each one’s interest in tbe land bore to tbe
After this arrangement' had been entered into, the defendants moved the court to set aside the decree and dismiss the suit.'
Prior to passing upon this motion the court took up the application of W. PI. Phelps for the allowance of an attorney’s fee and made an allowance of $720 for his services, taxing the same as costs in the cause and ordering the costs to be taxed against all the parties according to their respective interests as set out in the interlocutory decree.
Thereafter, the defendants’ motion to set aside the interlocutory decree and dismiss the cause was by consent taken up and the court found that the organization of the corporation and the arrangement of taking stock had been agreed upon, and sustained the motion as to the dismissal of the cause, but overruled that portion of the motion asking that the interlocutory decree be set aside, and ordered that the cause be dismissed and the defendants discharged, and that the costs including the attorney’s fee be taxed against the respective parties. From this action the appeal was taken.
At the hearing as to the allowance of an attorney’s fee, the plaintiff introduced as a witness T. Y. Nolan who testified that the value of the land when the partition suit was filed was $24,000. Plaintiff then showed by the testimony of A. L. Thomas and R. A. Moneyham, two lawyers of Jasper county, that the value- of the services rendered by attorney W. H. Phelps in this cause was $1200. The defendants offered no evidence as to the value of the attorney’s services, but did offer in evidence the deeds from the respective parties to the corporation and the documents
There are but two questions raised, by appellants in this appeal, one as to the power of. the trial court to allow an attorney’s fee in a partition suit under the facts herein, and the other as to whether the allowance of $720 was excessive, unreasonable, and a manifest abuse of the discretion vested in the court.
Relying upon the cases of Draper v. Draper, 29 Mo. 13, and Lucas Bank v. King, 73 Mo. 590, appellants insist that in the absence of a contract for a fee between the plaintiff and its attorney, none could be allowed.
We must rule against appellants on this contention, and it would seem that no other reasons need be given than those contained in the following cases: Liles v. Liles, 116 Mo. App. 413, 91 S. W. 983; Donaldson v. Allen, 213 Mo. 293, 111 S. W. 1128; Forsee v. McGuire, 109 Mo. App. 701, 83 S. W. 548; Eddie v. Eddie, 138 Mo. 599, 39 S. W. 451; State ex rel. Shipman v. Allen, 124 Mo. App. 465, 472, 103 S. W. 1090; Taussig v. Railway Co., 166 Mo. 28, 65 S. W. 969. These eases hold, first, that the amount of the attorney’s fee need not be fixed by contract or agreement in a partition suit to authorize the trial judge to allow the plaintiff’s attorney a fee, and second, that where an attorney renders valuable services which are accepted by his client, there is an implied agreement to pay for the same. It is distinctly pointed out in these cases why the rule announced in the two cases relied upon by the appellants is no longer the law in this State.
Appellants cite section 2275, R. .S. 1909, which reads as follows: "Upon the plaintiff dismissing his suit, or defendant dismissing the same for want
For the reasons stated in Donaldson v. Allen, su- • pra, the attorney for the plaintiff in an equitable partition is entitled to have' his fee taxed against all the parties taking under the partition according to their respective interests. Plow could a more just partition be arrived at than that accomplished in this case ? The ultimate purpose of this, as well as> any partition suit, was to give the respective owners their individual interests in the property rather than their interests in common. The petition filed by plaintiff’s attorney brought about this ultimate result. In some cases, the property can be divided in kind; in others, the proceeds must be divided. While' it is true the course here pursued was somewhat novel, the purpose of the suit and the result reached was that which is desired in any partition proceeding. Considering the character of the land sought to be partitioned, the process of adjustment of the rights of the various parties here was far better than to have divided the land in kind, in which event possibly one of the tenants in common would have acquired valuable mining land, and another
The case of Appleman v. Appleman, 140 Mo. 309, 41 S. W. 794, fails as an authority here for the reason that the plaintiff lost the suit because it was determined that he had no interest subject to partition. We are also referred to the case of Murphy v. Smith, 86 Mo. 333, but that was a suit in ejectment and hence has no bearing on the question in issu.e here. So, in the case of Schafer v. Roberts, 166 Mo. App. l. c. 84, 148 S. W. 393, the question of attorney fees arose under the attachment law and not under the statutes referred to in the case at bar. In the case of Whitsett v. Wamack, 95 Mo. App. 296, 69 S. W. 24, the question involved was concerning an allowance to the guardian ad litem in a partition suit, and the question before us was not raised in that case, although some of. the language used in the opinion, which was purely obiter, would seem to be contrary to our ruling. However, it seems to us that the court in that case went further in construing the statute so as to make an allowance for the guardian ad litem than it is necessary for us to go in this ease to allow the attorney’s fee, and the ruling in that case on that qtiestion is approved by us, and was probably made on the broad ground which courts should take in holding that where valuable services have been rendered which had been accepted and the benefits thereof received, it is the duty of the court
As to the second contention, it may be merely noted that the showing made, to-wit, that the property was worth $24,000, that the desired result, had been accomplished, and that an attorney’s fee of $720 had been allowed, would certainly be sufficient, and one which does not prompt us to hold that the discretionary power of the court was abused. Besides, the only testimony introduced concerning the value of the services was that of the two members of the Jasper county' bar whose standing as lawyers and business men was unquestioned and known to the trial judge, and as the amount fixed by the trial judge was less than two-thirds of that fixed by them as a reasonable fee, we hold that the trial court was amply justified in the amount of the allowance made.
It follows from what has been said that the action of the circuit court should be affirmed, and it is so ordered.