19 Mont. 389 | Mont. | 1897
Section 1394, Code of Civil Procedure, provides that ‘ ‘the costs of partition, including reasonable counsel fees expended by the plaintiff or either of the defendants for the common benefit, fees of referees or other disbursements, must be paid by the parties respectively entitled to share in the lands divided in proportion to their respective interests therein, and may be included and specified in the judgment. ’ ’ It appears from the record that the learned judge of the district court, in reducing the allowance originally made as a fee to the plaintiff’s counsel, was of the opinion that the services rendered by such counsel in preparing the complaint in partition, and in conducting the proceedings had prior to the judgment and decree, acted in behalf of plaintiff alone, and did not perform such services for the common benefit of all parties. But, under the conditions apparent in this case, we think this construction of the statute is incorrect. The plaintiff was obliged to resort to proceedings in partition to effect a division of the property held by him and the defendants. To conduct such proceedings, it was necessary for plaintiff to employ counsel, and the action taken by such counsel, it appears by the decree rendered by the court, was certainly beneficial to all of the defendants, as well as to the plaintiff. We believe that the statute recognizes that proceedings in partition are for the benefit of all parties to the action; and it was for this very reason provided that the parties determined by the court to be entitled to share in the lands divided should be liable for the costs of partition, including reasonable counsel fees expended by the plaintiff or either of the defendants for the
We therefore think that it was error for the court to limit an allowance to services performed after entry of judgment and decree, and that compensation should be allowed to appellant for necessary professional services of counsel in conducting the proceedings in partition to a completion for the common benefit of all parties thereto. We do not feel called upon to fix the amount or the fees to be allowed to the plaintiff’s counsel. The district court is in a far better position to do so, and it is proper that it should. In doing so, if it appear to the court that it was necessary for their common benefit for defendants to employ counsel to protect their interests, and secure a just partition, there should be allowed, as costs, reasonable counsel fees so expended by ' defendants, which should be considered in fixing plaintiff’s attorney’s fees, as in such cases the statute does not contemplate that defendants should pay not only their own counsel, but also be taxed for part of the fees of opposing counsel. (Kilgour v. Crawford, 51 Ill. 249.) The orders appealed from are reversed, and the cause is remanded to the district court, with directions to allow to the plaintiff, as part of the costs of the partition, reasonable counsel fees expended for the common benefit of all, according to the rule above indicated, and to tax such costs in accordance with the statutes.
Reversed cmd Remanded.