Cackley v. Myers

• Decision Date: 31 December 1917
• Docket Number: No. 12637.,12637.
• Citation: 199 S.W. 719
• Parties: CACKLEY v. MYERS.
• Court: Missouri Court of Appeals

199 S.W. 719

CACKLEY v. MYERS.

No. 12637.

Kansas City Court of Appeals. Missouri.

December 31, 1917.

Error to Circuit Court, Vernon County; B. G. Thurmond, Judge.

"Not to be officially published."

Bill by Anna Cackley against T. J. Myers. Bill dismissed, and plaintiff brings error. Affirmed.

Irvin Gordon, of Nevada, Mo., for plaintiff in error. W. M. Bowker, of Nevada, Mo., for defendant in error.

TRIMBLE, J.

This was a suit in equity to set aside an order or judgment of the circuit court of Vernon county taxing an attorney's fee in a partition suit brought to divide certain lands in that county which were owned by three persons residents of Illinois, to wit, William T. Cackley, Minnie Drake, and Anna Cackley. The latter was defendant in the partition suit, and owned one half of the lands in question, and the other two owned the other half and were the plaintiffs in said partition suit. Defendant was the attorney for plaintiff in said proceeding.

Partition was had in kind, and the proceeding was regular in every way, and plaintiff in error got all that she sought or was expecting in the division thereof. Her only complaint is that the court allowed too large a fee to the attorney for plaintiffs in the partition proceeding. Plaintiff in error here was duly summoned in the partition suit, but filed no answer therein nor made any contest. She, however, was aware of all the steps necessary to a division of the property, fully cognizant of the time when the commissioners were to divide the land, and was on hand to protect her own interests. After the report of the commissioners making the division had been approved, the defendant in error here (attorney for plaintiffs in the partition suit) filed a stipulation between himself and the plaintiffs therein agreeing that the court should fix and allow the attorney fee, and thereupon the court allowed said fee in said partition proceeding and ordered the same to be taxed and paid as costs. Of course, if the fee were paid, one-half thereof would come out of the pocket of plaintiff in error. Aside from being present at the time the commissioners were on the land to divide it, the defendant in that suit, plaintiff in error here, paid no attention to the partition proceeding, but allowed it to proceed to its final close without doing anything therein. After the term had ended at which the allowance of the fee was made, she discovered that the court had allowed the fee, and thereupon brought this suit to have the order allowing same set aside.

Although the ground of the suit to set aside the allowance was alleged to be fraud there was no fraud whatever shown. The land to be partitioned was of the value of $37,000, and the fee allowed was shown to be the usual fee in such cases.

Plaintiff's claim of fraud is based upon no more substantial ground than that she had been informed by an outsider, one having nothing to do with the partition suit, that the attorney therein had agreed with the plaintiffs to file the suit for $100. The amount allowed by the court, pursuant to the written stipulation of plaintiffs in that suit, was much larger than that....