Cole v. Scott

• Decision Date: 08 January 1979
• Docket Number: No. 2,No. 78-188,78-188,2
• Citation: 264 Ark. 800,575 S.W.2d 149
• Parties: Clifford F. COLE et al., Appellants, v. Nelson L. SCOTT et ux., Appellees
• Court: Arkansas Supreme Court

Page 149

575 S.W.2d 149

264 Ark. 800

Clifford F. COLE et al., Appellants, v. Nelson L. SCOTT et ux., Appellees.

No. 78-188.

Supreme Court of Arkansas, Division No. 2.

Jan. 8, 1979.

Gus R. Camp, Piggott, for appellants.

Guy Brinkley, Piggott, for appellees.

HOLT, Justice.

Appellees and appellants were owners, as tenants in common, of 346 acres of land. Appellees sought a partition, alleging the lands were susceptible to division and, if found not to be, the property should be sold at public auction and the proceeds partitioned according to the parties' respective interests. In response, it was appellants' position that the lands could not be divided in kind and, therefore, should be sold at public auction. The chancellor, as requested by the appellees, appointed Commissioners to view the lands and determine whether the acreage was capable of division. The court rejected their determination that the lands were divisible and ordered the property sold and the net proceeds divided pro rata. The property was sold at a public sale for $332,160. After payment of mortgages and expenses, $230,210.29 remained for distribution to the parties. The chancellor allowed appellees' attorney a fee of $15,000 payable from the common fund of the sale proceeds. Appellants first assert that Ark.Stat.Ann. § 34-1825 (Supp.1977), authorizing the award of attorneys' fees in partition suits, is unconstitutional in that it takes property without due process of law in violation of the 14th Amendment of the U.S. Constitution. § 34-1825 provides:

Hereafter in all suits in any of the courts of this State for partition of lands when a judgment is rendered for partition in kind, or a sale and a partition of the proceeds, the court rendering such judgment or decree shall allow a reasonable fee to the attorney bringing such suit, which attorney's fee shall be taxed as a part of the costs in said cause, and shall be paid pro rata as the other costs are paid according to the respective interests of the parties to said suit in said lands so partitioned.

It is true that this statute makes it mandatory for the court to allow attorney's fees in a partition suit. Johnson v. Smith, 248 Ark. 929, 454 S.W.2d 649 (1970). There we specifically held that the adversary nature of a partition action, as here, no longer affects the allowance of those fees. We also observed that partition actions "obviously inure to the benefit of those owning any share of the property. To require the cotenant who institutes the action to bear more than his proportionate share of this burden is inequitable. The preamble to Act 518 of 1963 (§ 34-1825) clearly indicates our General Assembly's awareness of the inequitable burden risked by one initiating a partition suit and its intention to remedy the situation by amendment of the existing law."

Even so, appellants correctly assert that we did not deal with the issue of due process in that case. It is argued that the legislature, by the mandatory language of § 34-1825 with respect to allowance of attorney's fees, has "taken or confiscated the property of defendants in this case before they have even had their day in court or an opportunity to be heard" and that property in a partition action is now taken by legislative mandate from an unconsenting party with the court only having discretion as to "how much property is to be taken from the property owner." Appellants fail to point out any case in which a statute similar to ours has been held unconstitutional as contravening the due process clause of the 14th Amendment. It has been held, however, that statutes which provide for the award of attorney's fee in partition actions are not violative of the due process clause of the 14th Amendment nor any other provision of the U.S. Constitution. Dent v. Foy, 210 Ala. 160, 97 So. 627 (1923); Scott v. Marley, 124 Tenn. 388, 137 S.W. 492 (1911). See...