129 Mo. App. 117 | Mo. Ct. App. | 1908
The appeal is from an order of the Lincoln Circuit Court, allowing the law firm of Norton, Avery & Young a fee of $200 for their services in bringing and prosecuting a partition suit to a final termination. Robert M. Liles was the plaintiff in said suit and David Liles et al. were defendants. The suit was to partition 297 acres of land valued at about $4,000. Partition was in kind and was made by commissioners appointed by the court for that purpose. It appears from the evidence there ivas a mortgage on the land for about $445, which was brought into court for adjudication in the partition suit. A controversy arose over the amount the several parties to the suit should pay on this mortgage which was finally settled. on an appeal to the Supreme Court from the judgment of the circuit court, taken by defendants. Mr. Avery of the firm of Norton, Avery & Young, prepared the petition and tried the case in the circuit court, followed it to the Supreme Court and supervised the preparation of the report of the commissioners. It appears that each commissioner, in his bill of costs, asked $2.50 a day for his services and
The court gave the following declarations of law at the instance of defendants:
“1. If the court believes from the evidence in the case, that in the suit of Robert Liles v. David Liles et al., the defense made by the defendants was made in good faith, then the plaintiff’s attorneys, Norton, Avery & Young, are not entitled to have allowed a fee to be taxed as costs for their services rendered in said partition suit upon such contested issues.
“2. And the court further instructs that if it appears from the evidence that plaintiff’s attorneys, Norton, Avery & Young, upon the former hearing of this motion, claimed $250 as full compensation for all. services rendered by them in said partition suit, including services rendered on the contested issues therein, then such claims should be reduced in proportion as the services rendered by them on such contested issues bears to the whole services rendered in said partition suit.”
This case was here on a former appeal (116 Mo. App. 413). We then held that a verbal agreement be
Defendants contend that Mr. Avery was negligent in failing to take any steps to prevent the taxation of the improvident costs claimed by the commissioner and county surveyor. It is not shown that these costs had been allowed by the court. Such costs can only be taxed after they have been approved by the court, and it was the duty of the court to inspect the bills presented by the commissioners before approving them and ordering them taxed as costs. This duty the court doubtless would have performed without a motion calling his attention to the matter, hence we do not see how Mr. Avery can be convicted of negligence in the circumstances related. TJie amount claimed as attorney’s fees was $250; the court allowed but $200. The judge evidently deducted $50 as representing the value of Mr. Avery’s services in respect to the mortgage. Under all the evidence we think the allowance a reasonable -one, and affirm the judgment.