Hoffman v. Smith

61 Miss. 544 | Miss. | 1884

Campbell, C. J.,

delivered the opinion of the court.

Section 2577 of the Code of 1880 confers authority on the court to allow a reasonable solicitor’s fee to the solicitor'of the complainant in partition suits, to be taxed as a common charge on all the interests. “It is intended to confer power on the court to make the common property bear the cost of partition made for the good of all by allowing a solicitor’s fee for instituting and conducting the proceedings, without which partition or sale would not have been made.” Potts v. Gray, 60 Miss. 57. It gives the court discretion to be exercised to effect justice by imposing the reasonable cost of a common benefit on all who share it. It is designed particularly for cases in which some of the owners in common of land proceed for partition, and the proceeding, not resisted by others, is conducted by the solicitor of the complainant without any other solicitor being engaged in the cause. But it is not limited to those. The power to allow a reasonable solicitor’s fee exists “in all cases of the partition or sale of property for division- of proceeds.” It should be exercised with caution, and be confined as nearly as possible to the class of cases for which it was designed, i. e., those in which there is no contest’ between the parties to the suit, and, therefore, no necessity for the defendants to have counsel of their own. If there is controversy between the parties and propriety in the defendants being represented in the cause by their own counsel, they should not be required to contribute to pay the counsel of their adversary and who antagonized their interest in the suit. To allow a fee to the solicitor of the complainant in such a state of case is an abuse of the discretion conferred by the statute. In this case partition or sale of the land was sought by those owning little more than half of the interests. It was resisted and the defendants were represented by their own counsel. There was a real contest between the parties, who disputed as to the right to have partition or sale of the land. The contest appears to have been waged in good faith on the part of the defendants. In such case it is not proper to allow as a common charge a fee to the solicitor of the complainant, and the court erred in doing it. In Kelly v. Miles we held that the discretion conferred by statute was not abused, and affirmed a decree allowing a fee to the solicitor of complainant as a charge on the common property. We thought the facts of that case justified it. The facts of this do not. The statute should not be permitted to be abused. The discretion it confers should be employed to make the common property bear the burden of a common benefit enuring to all the owners who had no just occasion to have their own counsel in the case. Merely because the defendant engaged his own solicitor the court should not deny a fee to the solicitor of the complainant, but because the defendant required a solicitor from the exigency of his cause and employed one he should not be required to pay his adversary. In each case it is for the court on considering all of the facts to determine as to the allowance. We reject the suggestion that the court may not. fix the amount of the solicitor’s fee. It may, aud should be circumspect to prevent abuse as to the amount.

Decree reversed and cause remanded.