4 N.W.2d 750 | Neb. | 1942
This is an appeal from an award of attorneys’ fees> to' Shuman & Overcash, attorneys at law, and also from an order assessing the costs of the second sale had in a partition proceeding carried on under sections 20-2170 to 20-2199 and 20-21,100 to 20-21,111, Comp. St. 1929.
As to the first contention of the appellants, it is, substantially, that “attorneys’ fees allowable under the statutes in partition actions for plaintiff’s counsel are those in amicable proceedings,”' and that within this principle the attorneys’ services performed by pláintiff’s attorneys were not performed in an “amicable proceeding.” •
The parties to the action were Wesley T. Wilcox, plaintiff, and Victor H. Halligan, Louise Halligan, his wife, Victor H. Halligan, trustee of the estate of John J. Halligan, deceased, Carrie S. Halligan, Kathleen D. Halligan and Nancy Jane Halligan, a minor, defendants. The defendants had succeeded, upon the death of John J. Halligan, to all the title
The appellants’ brief describes the property interests involved in the following terms: “In the property involved in this action at the time of J. J. Halligan’s death, Wilcox and Halligan (deceased) each had a one-half interest, with the exception of the Rose place. At that time there was a mortgage on the north quarter of the Rose place that Wilcox and Halligan had sold to Rose. The mortgage was for $4,000, but no interest had been collected for six years, and no rent had been collected from Rose for three years on the Hughes quarter which Rose rented. On the pasture south of Hershey, no rent had been collected for a couple of years. The Scottsbluff land was a year behind in rent. Mr. Rose came in and gave a mortgage upon the whole half-section for the amount then due. On the south quarter was a mortgage to the Lincoln Joint Stock Land Bank, and our mortgage was then a second mortgage on that quarter, and a first mortgage on the north quarter. Mr. Rose then got a Federal Land Bank loan on the south quarter with improvements on to take up the Lincoln Joint Stock Land Bank mortgage, and several years of taxes. Foreclosure was instituted against Mr. Rose, who eventually gave a deed to W. T. Wilcox and Victor H. Halligan, trustee of the estate of John J. Halligan, deceased. The mortgage to the Federal Land Bank of around $3,500 was then paid off.”
Accepting the statement of facts above set forth as true, and, indeed, fully sustained by the proof, they disclose a cause fairly within the law authorizing partition, and necessarily invoke the rule: “Where a cause is fairly within the law authorizing a partition, the right to partition is imperative and absolutely binding upon courts of equity. In such a case the right of partition is a matter of right and not of mere grace.” Oliver v. Lansing, 50 Neb. 828, 70 N. W. 369. See, also, Windle v. Kelly, 135 Neb. 143, 280 N. W. 445.
The pleadings disclose that the petition filed by Wesley T. Wilcox, as plaintiff, fully complies with the requirements of
The record discloses that this case, after completion of the issues, proceeded in the regular manner. On November 14, 1940, judgment in partition was entered without contest, and George B. Dent was appointed referee. On November 16, 1940, the referee so appointed reported that said property would have to be sold, and on the same date the court ordered the referee to sell the property which was the subject of the partition action. This -was consistent with defendants’ pleadings and the relief prayed for therein. No objections were made by any of the parties to the order thus entered. The sale was held by the referee on January 18, 1941, at which plaintiff was the highest bidder for all of the property, his bid being $3,650. It appears that defendants Victor H. Halligan and Louise Halligan, his wife, Victor H. Halligan, trustee of the estate of John J. Halligan, deceased, and Carrie S. Halligan filed a motion to> set aside this sale, which for the purpose of this opinion will be said to have been based on the proposition that the price bid upon said land was less than one-half of its fair value, and that a resale would bring a larger amount. A hearing was had on
This jurisdiction is quite committed to the doctrine that in an amicable proceeding under our statutes the plaintiff is entitled to have his reasonable attorneys’ fees taxed as costs to be paid out of the proceeds of the sale of the partitioned property, where a sale is had. Here we have a proceeding which the record discloses was wholly without contest and strictly amicable in all respects, up to and including the decree of partition, the appointment of the referee, the approval of his report, and the order of the district court directing the sale of the premises. All of the services of plain
We are quite of the opinion that the doctrines of the following cases clearly support the action of the trial court in its allowance of attorneys’ fees in this case. Johnson v. Emerick, 74 Neb. 303, 104 N. W. 169; Harper v. Harper, 89 Neb. 269, 131 N. W. 218; Smith v. Palmer, 91 Neb. 796, 137 N. W. 843; Mabry v. Mudd, 132 Neb. 610, 272 N. W. 574.
The defendants challenge the taxation to them of the costs of the second sale, amounting to the sum of $44.24. This is based on the fact that at the second sale the premises were purchased by the defendants, or some of them, for $8,400, subject to taxes, so that the amount of the second sale exceeds the amount of the first sale by $4,750. The defendants concede in their brief that in- this case the district court, governed by equitable principles, possessed a certain discretion in taxing costs to the parties to the proceeding, but- contend that its action in the present case constituted an abuse of discretion. We accept, but do not determine, the basis of submission of this question before us by both parties as being controlled by equitable principles. The origin of this controversy relates back to the order of the trial court of February 15, 1941, conditionally sustaining the motion to set aside the first sale. Defendants’ motion because of its substance was at most efficient only as invoking the discretion of the district court. It was not based upon a clear, statutory right. The district court, as a condition precedent and prerequisite to sustaining this motion pre
Query: Are these questions involved in these transactions now properly before this court for determination?
But, aside from this situation, to justify relief against this order of the trial court of February 15, 1941, and its enforcement by the district court’s order of April 10, 1941, it must, as apparently conceded by all parties to this appeal, clearly appear that there has been an abuse of discretion in the premises by the district court. In re Estate of Nielsen, 135 Neb. 110, 280 N. W. 246; Woodard v. Baird, 43 Neb. 310, 61 N. W. 612; In re Clapham’s Estate, 73 Neb. 492, 103 N. W. 61. This the record as an entirety fails to disclose.
It follows that the judgment of the district court, as to the two questions presented by this appeal, is correct, and it is affirmed. . .
Affirmed.