25 S.E.2d 676 | Ga. | 1943
In an equitable partition proceeding as permitted by the Code, § 85-1501, the judge of the superior court before whom the same is pending has the power under general equitable doctrine, in a proper case and where the circumstances justify it, to allow compensation for the plaintiff's counsel, as a charge against the fund arising from the sale of the land partitioned. Especially is this true where other equities are involved, such as the settlement of involved accounts between the parties, where deeds are canceled, and where a receiver is appointed to manage and sell the properties.
The defendants filed a joint answer in which they set up generally the contention that the assets of "the estate," it not appearing from the answer or the petition just what was referred to as the assets, had been properly managed by Lynn W. Werner, who had from time to time made various advances to the estate from his own funds and had advanced varying amounts to the four interested, including himself. Elaborate explanations were set forth as to various transactions with regard to real estate owned and loans representing indebtedness against such property. It was pointed out in the answer that it was impracticable to set forth a complete accounting in the pleadings and stated that "defendants realize the necessity for the appointment of an auditor as prayed by the petitioner as would have been prayed by these defendants if petitioner had not prematurely filed his action." It was contended in the answer that the plaintiff filed his action after receiving statutory notice on their part of their intention to apply for a partition of the property as provided by statute. It was admitted in the answer that the property involved could not be divided equally and that it was necessary that it be sold. In due course the court appointed an auditor to hear the issues of law and fact as made by the pleadings, but did not at that time act upon the prayer for the appointment of a receiver. The auditor made his report which is not in the record before us, but in which he, according to a decree based upon his findings, stated the accounts of the respective parties at interest, and though this does not clearly appear, apparently found against the contentions of the plaintiff with respect to mismanagement and with respect to other matters set up in plaintiff's petition as between him and defendant Lynn W. Werner. A decree apparently giving effect to *4 the auditor's findings was consented to by counsel for plaintiff and the defendants. Following this, counsel for plaintiff brought again to the attention of the court his prayer for the appointment of a receiver. The order of appointment recites that "upon application of the parties and after hearing, Lynn W. Werner is hereby appointed receiver of the assets of both estates, . ." etc. He was directed to collect the rent, manage the property, etc., and to report to the court within a limited time the assets on hand and the exact status of the property including cash on hand, and was further ordered to recommend to the court the best method to sell the property. The same order of appointment designated William S. Shelfer, attorney for the plaintiff, and F. A. Hooper Sr., attorney for the defendants, as counsel for the receiver. The receiver reported having taken in $3540.98 and disbursed $754.32, and having in his possession the real property "involved in the litigation," described by parcels, pointed out that the real estate had been listed for sale with various realty firms and a cash bid of $32,500 had been received for the property from a realty company. Later it seems that two of the defendants increased this bid to $33,500, which was ordered approved and accepted as the highest and best bid. The receiver then, in accordance with direction from the court, made a deed of conveyance to himself and Ray C. Werner, as purchasers. Following this, Shelfer, as attorney for the plaintiff and as attorney for the receiver, made application for an allowance of fees. Hooper also made application for allowance of fees for representing the receiver. The defendants objected to the allowance of any fees for Shelfer as a charge upon the funds in the court, except as against the share of the plaintiff. Upon the hearing of these applications and that of the receiver for his own compensation, the judge, after rendering an opinion, provided for the compensation of Shelfer and Hooper as attorneys for the receiver, but denied the claim of Shelfer for any fee to be awarded out of the general fund, stating in his opinion that he felt that Shelfer, as counsel for the plaintiff, was entitled to an award of attorney's fee "for services rendered complainant in bringing the plaintiff's part of the fund into court, and for such services rendered the court assesses a fee of $1000 which shall be a charge upon the distributive share to which the plaintiff will be entitled." Compensation was allowed to the receiver out of the entire fund. *5 The judge, in the opinion entered, held that as a matter of law he was not permitted to charge the whole fund with any fee for bringing the property under administration or for "bringing the fund into court," indicating that, if he had not felt so bound as a matter of law, some appropriate allowance would have been made to counsel for the plaintiff, to be paid from the entire fund. The plaintiff, in Shelfer's behalf, excepted to the order denying him compensation as prayed.
1. The opinion filed by the judge shows that he sought earnestly to follow the provisions of law contained in our Code sections and in the decisions of our courts, which have dealt with both law and equity cases on the question of counsel fees. He predicated his holding mainly on the case of Neal v. Neal,
The court went ahead to point out that it did not follow that in every equitable partition proceeding such fees are to be so allowed from the common fund, recognizing that in all equitable cases where these questions arise the judge sitting in equity may use a very wide discretion and consider what is just and proper in the particular case before him, realizing that if he does not act arbitrarily his discretion will not generally be disturbed.United States Fidelity c. Co. v. Clarke,
One of the cases relied upon by defendants in error is Hines
v. Brunswick Albany Railroad Co.,
While the question of counsel fees was not passed upon inCates v. Duncan,
Reversed. All the Justices concur.