169 P. 264 | Utah | 1917
On May 17, 1915, James A. Murray brought an action in the district court of Salt Lake County against Stephen Hays and Mary A. Hays, his wife, and the Phelan Fund, a corporation, to partition certain premises jointly owned by such parties and having a frontage of 46*4 feet on Main Street in Salt Lake City. It is alleged that the plaintiff, Murray, owned an undivided one-half interest and Hays and the Phelan Fund an undivided one-fourth interest each in said premises. Such ownership is admitted by the pleadings, and at no time was there any issue as to the respective interests of the parties in the property. The defendants Hays and wife employed separate counsel, as did also the Phelan Fund. Separate answers were filed in which it was pointed out that Mary H. Murray, wife of the plaintiff, and Matilda T. Murray, wife of a former owner of the premises, were necessary parties to the action. As a result of such allegations in the answers the plaintiff procured a release and disclaimer of all interest in the premises by both Mary H. and Matilda T. Murray. The defendants interposed an additional defense that prior to the bringing of the action another suit for the partition of the property had been instituted, and that while such action
A hearing was had at the conclusion of which the court made an order fixing the entire amount of counsel fees to be allowed at $10,000, and directing that $8,000 of • that sum should be paid to plaintiff, and $1,000 to Hays and wife, and $1,000 to the Phelan Fund. From that order Hays and wife bring the matter to this court on appeal.
Many errors are assigned. Appellants, however, chiefly contend: (1) That the court had no power to allow counsel fees to the plaintiff; (2) assuming that the court had such power, it was without authority to'tax any part of the amount g%wed plainfiff against that portion of the fund belonging to appellant^; and (3) that in any event the order adjudging that plaintiff should receive $8,000 is not warranted by the §yidence and record in this cage.
“The costs of partition, including reasonable counsel fees expended by the plaintiff or either of the defendants for the common benefit, fees of referees, and 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. In that case there shall be a lien on the several shares, and the judgment may be enforced by execution against such shares, and against other property held by the respective parties. When, however, litigation arises between some of the parties only, the court may require the expenses of such litigation to be paid by the parties thereto, or any of them.”
But little can or need be said in addition to the language found in that section to determine what powers are given the court in apportioning the costs incurred in partition proceedings. The language used distinctly states that the costs, including reasonable counsel fees, expended by plaintiff
The contention of appellants that the court was without authority to allow plaintiff any counsel fees therefore must fail.
The further contention on the part of appellants that, though the court was authorized to fix and allow plaintiff counsel fees, it was without authority to tax any part of the amount against that part of the fund in the hands of the referee and master of sale belonging to the appellants is answered contrary to that contention by the statute and the cases cited above.
We have now to consider the further contention that the fees allowed are exorbitant, and that the amount awarded plaintiff is excessive under the facts and circumstances as disclosed by the record in this appeal. What sum would constitute a reasonable fee was a question of fact.
Many cases are referred to by appellants from courts holding contrary to the rulings indicated here. An examination of those cases will disclose that the statutes under which the decisions therein were rendered are not at all similar to ours. Numerous cases are cited, for instance, from the Illinois Court of Appeals holding that, when defendants have appeared and filed answers in partition proceedings stating a substantial defense, no part of plaintiff’s counsel fees should be taxed against the fund or property of the defendants. Such holdings follow the statute of that state, but are not controlling under a statute such as section 3566, supra.
For the reasons stated, the judgment of the lower court is affirmed. Respondent to recover costs.