190 Iowa 414 | Iowa | 1920
— One Rutherford died testate, August 3, 1917, leaving real property located in Iowa County. His will was ad
“Now, to wit, on this 18th day of December’, 1918, this cause is settled per stipulation on file, referee is hereby discharged, judgment is hereby entered against parties to said stipulation for amount of costs therein provided, plaintiff’s attorney allowed $698 attorney’s fees, referee allowed $300 as compensation for his services, including all outlays of expenditures. ’ ’
Later on, April 23, 1919, Mary A. Rutherford, one of the defendants interested in the estate, moved for retaxation of the costs, alleging that attorney’s fees allowed were “grossly in exaggeration of the services rendered; that the fees allowed to the referee were grossly exaggerated and excessive; that $14.50 allowed for making the complete record should not have been taxed, as no such record was made; that the fees allowed the appraisers should not have been taxed, for that the appraisers were notified of the settlement before the land was appraised; and that the fee of $24.25 allowed Osburn & Gallager was not justifiable, and should not have been taxed. ’ ’
The motion was supported by a couple of affidavits. A demurrer in five grounds was interposed by the plaintiff' and sustained by the court. These’ grounds of the demurrer, in substance, were: (1) That the judgment, a copy of which is shown above, is an adjudication of the fees and compensation of attorney and referee; (2) that these are inherent in the judgment, and may not be set aside; (3) that a motion to retax costs is not available, where error of the clerk is not involved, and judgment
The other grounds may be considered together. . Section 4261 of the Code provides that:
This statute defines the maximum compensation which may be taxed in favor of an attorney in such a case, but whether such compensation shall be taxed or a lesser sum, rests in the sound discretion of the court. Reasonable compensation, not exceeding the maximum, for the services rendered is to be allowed, and that only; and this is to be determined by the court. The same is true of the referee, though a maximum compensation is not fixed. Section 4272 of the Code provides that:
“Appraisers and referees appointed under the provisions of this chapter shall receive such reasonable compensation for their services as the court allows, which shall be taxed as a part of the costs.”
The court, then, is required to determine the amount which will be allowed attorney and referee, before their compensation may be taxed as part of the costs. What the compensation of
“A judgment or order shall not be reversed for an error which can be corrected on motion in an inferior court, until such motion has been made and overruled.”
The judgment is conclusive on the allowance of attorney’s fees or other specified costs. Fairbairn v. Dana, 68 Iowa 231; Perry v. Kaspar, 113 Iowa 268; Ainley v. American M. F. Ins. Co., 113 Iowa 709; Quinn v. Iowa & St. L. R. Co., 125 Iowa 301; Rogers v. Crandall, 143 Iowa 249; McCaskey v. Ft. Dodge, D. M. & S. R. Co., 154 Iowa 652. In Ainley v. American M. F. Ins. Co., supra, the point involved was whether attorney’s fees might be allowed “on a large amount collected by plaintiff’s attorney, for which no suit had been begun;” and it was held that this question might be considered on appeal. Section 3864 of the Code provides that:
“Any person aggrieved by the taxation of a bill of costs may, upon application, have the same retaxed by the court, or by a referee appointed by the court in which the application or proceeding was had, and in such retaxation all errors shall be corrected. ’ ’
This provision affords a remedy only against error occurring in the taxation of the items of cost. Fairbairn v. Dana, supra. Costs are properly no part of the judgment (Fisher v. Burlington, C. R. & N. R. Co., 104 Iowa 588); and the errors to be corrected by motion are those of the clerk (Ainley v. American M. F. Ins. Co., supra); and the motion for retaxation is required, in order to bring the precise question before the court for its ruling. For, unless the court has passed upon the precise question involved, there is no ruling from which an appeal may be taken. If the court has ruled on the question at issue, there is no occasion for raising the point some other way, and obtaining a see