103 Cal. 169 | Cal. | 1894
Lead Opinion
This is an appeal by Adolph Sutro from that portion of a judgment in partition proceedings that awards to the plaintiff in the action. an attorney’s fee of $5,000. In the trial of the action of partition the amount of the respective equitable interests of plaintiff and appellant Sutro to the realty involved in the litigation was warmly contested, and as to such matters the litigation resulted adversely to this appellant.
At the hearing, the report of the referees was acquiesced in by all the parties in interest, and the only contest that was made was as to the amount which should be allowed to plaintiff under section 796 of the Code of Civil Procedure for reasonable counsel fees expended by him for the common benefit. The court, after hearing the testimony of nineteen witnesses, fixed the fee at $5,000, and determined that defendant Sutro’s proportion was $4,828.25; and the propriety of this order is the sole question involved in this appeal. Section 796 of the 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
There is a sharp conflict in the evidence as to what would be a reasonable attorney’s fee for the labor performed, and. under these circumstances we will not disturb the judgment. The amount of the attorney’s fee was a question of fact, essentially within the province of the trial court to determine from the evidence, and to disturb the trial court’s finding in this regard, where, as in this case, there is a substantial conflict in the evidence, would be a trespass upon well-settled principles long recognized by this court. Thomas P. Stoney, attorney for plaintiff, stated in detail the character and amount of the services he had performed as attorney for plaintiff in the action, and he further testified that such services were reasonably worth $10,000; and this testimony was corroborated by various other eminent members of the bar as to the value of the services rendered. We think this evidence is amply sufficient to support the judgment. While it is true the witness Stoney did not segregate the value of the services rendered by his firm in furtherance of the personal interests of his client in contesting the claim of title from the value of the services rendered for the common good in the matter of the partition proceedings proper, still the amount and character of labor performed fbr .the common benefit was -in evidence before the court, and upon that evidence alone, without the advice of experts, the court had the power to fix the amount of the fee, and we are not prepared to say from the record before us that the amount awarded is too large. It was said in
For the foregoing reasons it is ordered that the judgment be affirmed.
Van Fleet, J., concurred.
Concurrence Opinion
I concur in affirming the judgment. I do not, however, consider that the fact that there was a conflict of evidence upon the subject of compensation is a reason for its affirmance.
The court below was authorized to ascertain what services had been rendered by the plaintiff for the common benefit, including those of his counsel, and to determine the compensation which would be proper to allow him therefor. This is a matter, however, which the court is to determine in the exercise of its judicial discretion, and not necessarily in accordance with the testimony of witnesses. It may fix the compensation to be allowed, in accordance with the practice of the court and its own knowledge of the usual compensation for such services, without calling to its aid the views and experience of other attorneys, or it may ask their aid as expert witnesses for its enlightenment; yet, if it does call them to its assistance, it is not required to make its decision in accordance with their testimony, but may disregard their testimony entirely. Like determining the amount to be allowed for counsel fees in the foreclosure of a mortgage, or in a suit for divorce, the court is called upon to exercise a judicial discretion in consideration of all the circumstances in the individual case; and, even though the testimony of the witnesses whose opinion it may ask will sustain it in the amount which it
In the present case the court was called upon to determine the amount of labor that had been rendered by the plaintiff’s counsel for the common benefit of all parties to the action, and fixed the amount of compensation to be allowed therefor at the sum of $5,000. While this would appear to be an unusual compensation to be allowed in an ordinary action of partition, and while the amount estimated by the several witnesses as proper to be allowed varied from $2,000 to $15,000, it cannot be said, in view of the character of the action, the time occupied in its trial, the questions presented in the case, the value of the property involved, and the services shown to have been rendered by the plaintiff’s attorney, that the sum fixed by the court is so grossly disproportionate to its value as to constitute an abuse of its discretion.