Connor Realty Company v. St. Louis Union Trust Company
| Decision Date | 11 December 1913 |
| Citation | 161 S.W. 865,176 Mo.App. 260 |
| Parties | CONNOR REALTY COMPANY, Respondent, v. ST. LOUIS UNION TRUST COMPANY et al., Appellants |
| Court | Missouri Court of Appeals |
Appeal from Jasper County Circuit Court, Division Number One.--Hon Joseph D. Perkins, Judge.
AFFIRMED.
Judgment affirmed.
McReynolds & Halliburton for appellants.
(1) Where a suit is dismissed, either by the plaintiff or by the court, under the law the court has no authority to do anything save tax the costs against the plaintiff. Sec. 2275 R. S. 1909; Schafer v. Roberts, 166 Mo. 84; Thompson v. Elevator Co., 86 Mo. 333. (2) This rule applies in partition as well as in other cases. Appleman v. Appleman, 140 Mo. 309. (3) The court had no authority to tax an attorney's fee and enter a judgment dismissing the suit. Under the law when the property is ordered sold it is contemplated that an attorney's fee shall be paid only on an order of distribution of the proceeds of the sale. Secs. 2609, 2602, 2591, R. S. 1909; 30 Cyc. 301; Wentworth v. Wentworth, 142 S.W. 145; Harrington v. Goldsmith, 68 P. 594; Wells v. Venderwerker, 60 N.Y.S. 1089. (4) The thory under which attorney's fees in a partition are allowed to the plaintiff, is that plaintiff's counsel renders services to all of the parties in interest in obtaining a partition of the property. But where there is no partition it has been expressly held in this State that there can be no allowance of attorney's fees. Whitsett v. Wamack, 95 Mo.App. 298; Whitsett v. Wamack, 159 Mo. 14; Secs. 4422, 4415, R S. 1909. (5) There could be no final judgment in partition in this case confirming the sale and distribution of proceeds among the parties, because the parties, by their own action, have divested the court of any possibility of making such a judgment. There being nothing left in issue the court had no choice but to set aside the interlocutory decree and dismiss the proceedings. Collins v. Crawford, 214 Mo. 167; Nevins v. Moore, 221 Mo. 361; In re Hutton's Estate, 92 Mo.App. 132; City v. Simmons, 167 Mo.App. 187; Wait v. Railroad, 204 Mo. 506; Railroad v. Bridge Co., 215 Mo. 296. (6) There can be no judgment for attorney's fees where there is no evidence to show that the plaintiff and his attorney had any contract that he was to be paid a fee. Draper v. Draper, 29 Mo. 13; Lucas Bank v. King, 73 Mo. 590; Frank v. Crawford, 14 Mo.App. 599; Gulick v. Huntley, 144 Mo. 252.
Howard Gray and W. H. Phelps for respondent.
(1) It is not necessary for the attorney who brings the partition suit to have a special contract with his client relating to fees. It is only necessary that there was an understanding that he was to be paid for his services. And the presumption is that the attorney was to be paid. Donaldson v. Allen, 213 Mo. 293; Liles v. Liles, 116 Mo.App. 413; Forsee v. McGuire, 109 Mo.App. 701; Eddy v. Eddy, 138 Mo. 599; Padgett v. Smith, 207 Mo. 235; Taussig v. Railway Co., 166 Mo. 28; Fitzpatrick v. Dooley, 112 Mo.App. 170; State ex rel. v. Allen, 124 Mo.App. 472. (2) When Col. Phelps filed the petition for the plaintiff, and as the record shows agreed to a continuance of the case and subsequently filed a reply, and as the judgment shows was the only representative of the plaintiff in court at the time the judgment was rendered, the law presumes that he was there at the request of the plaintiff. O'Brien v. Yare, 88 Mo.App. 489; Patterson v. Yancy, 97 Mo.App. 681; Cemetery Assn. v. McCune, 119 Mo.App. 349; Improvement Assn. v. Christian College, 234 Mo. 715; Miller v. Assurance Co., 233 Mo. 91. (3) The special statute relating to partition suit costs takes the place of the general statute relating to costs. Secs. 2279, 2609, R. S. 1909; McManus v. Burrows, 246 Mo. 438. (4) The only case cited by appellants that really discusses the question at issue is Whitsett v. Wamack, 95 Mo.App. 298, and the issue was not before the court in that case, and hence anything said on that point is not to be construed as the decision of the court. Koerner v. Car Co., 209 Mo. 141; State ex rel. v. Railroad, 240 Mo. 53; Lyons v. Surety Co., 147 S.W. 778; State ex rel. v. St. Louis, 241 Mo. 231. (5) The Wamack case, however, is express authority for the proposition that fees in partition can be allowed and assessed although there was no final judgment in partition as there was no partition in that suit, and yet the court upheld an allowance to the guardian ad litem.
This appeal was taken from an order allowing an attorney's fee of $ 720 in a partition suit.
The plaintiff and defendants were owners as tenants in common of eighty acres of land in Jasper county. On December 20, 1911, the plaintiff, by its attorney, W. H. Phelps, instituted a suit in the Jasper county circuit court to partition the property. The petition, signed by W. H. Phelps as attorney for the plaintiff, set up the respective interests of the parties, alleged that plaintiff was the owner of an undivided one-fourth interest, and prayed that the real estate be divided among the parties according to their respective interests. The defendants were served with process, and subsequently answered. The answer of Emma R. Holmes and the St. Louis Union Trust Company, two of the defendants owning an undivided one-half interest, admitted the averments in the petition as to the respective interests of the owners, set up the fact that the property was valuable mineral land, and could be divided in kind, and asked that commissioners be appointed to examine and divide the property in kind. The answer of James W. Way admitted the allegations of the petition, set up the fact that the property was valuable mineral land, and averred that the same could not be divided in kind in an equitable way, and asked that an order be made directing a sale of the property and a division of the proceeds among the parties according to their respective interests. The plaintiff in reply admitted that the land was not susceptible of partition in kind. After a hearing, the court entered an interlocutory decree finding the interests of the parties to be as alleged in the petition and directing that the land be sold and the proceeds divided according to the interests of the parties as found.
After the order of sale was made, all the parties owning this property agreed to form a corporation for the purpose of taking title to the land in suit. This arrangement was perfected and stock in the corporation was issued to each of the parties for an amount bearing the proportion to the whole amount of the stock that each one's interest in the land bore to the whole of the land. In other words, instead of dividing the property in kind, a corporation was organized with the capital consisting of the property in suit and each tenant in common took his respective part in stock of the corporation.
After this arrangement had been entered into, the defendants moved the court to set aside the decree and dismiss the suit.
Prior to passing upon this motion the court took up the application of W. H. Phelps for the allowance of an attorney's fee and made an allowance of $ 720 for his services, taxing the same as costs in the cause and ordering the costs to be taxed against all the parties according to their respective interests as set out in the interlocutory decree.
Thereafter, the defendants' motion to set aside the interlocutory decree and dismiss the cause was by consent taken up and the court found that the organization of the corporation and the arrangement of taking stock had been agreed upon, and sustained the motion as to the dismissal of the cause, but overruled that portion of the motion asking that the interlocutory decree be set aside, and ordered that the cause be dismissed and the defendants discharged, and that the costs including the attorney's fee be taxed against the respective parties. From this action the appeal was taken.
At the hearing as to the allowance of an attorney's fee, the plaintiff introduced as a witness T. V. Nolan who testified that the value of the land when the partition suit was filed was $ 24,000. Plaintiff then showed by the testimony of A. L. Thomas and R. A. Moneyham, two lawyers of Jasper county, that the value of the services rendered by attorney W. H. Phelps in this cause was $ 1200. The defendants offered no evidence as to the value of the attorney's services, but did offer in evidence the deeds from the respective parties to the corporation and the documents evidencing the incorporation. So far as this record shows, W. H. Phelps acted throughout as the attorney representing the plaintiff in this partition suit, and there was no contest concerning his services until it came to the allowance of a fee.
There are but two questions raised by appellants in this appeal, one as to the power of the trial court to allow an attorney's fee in a partition suit under the facts herein, and the other as to whether the allowance of $ 720 was excessive, unreasonable, and a manifest abuse of the discretion vested in the court.
Relying upon the cases of Draper v. Draper, 29 Mo. 13, and Lucas Bank v. King, 73 Mo. 590, appellants insist that in the absence of a contract for a fee between the plaintiff and its attorney, none could be allowed.
We must rule against appellants on this contention, and it would seem that no other reasons need be given than those contained in the following cases: Liles v. Liles, 116 Mo.App 413, 91 S.W. 983; Donaldson v. Allen, 213 Mo. 293, 111 S.W. 1128; Forsee v. McGuire, 109 Mo.App. 701, 83 S.W. 548; Eddie v. Eddie, 138 Mo. 599, 39 S.W. 451; State ex rel. Shipman v. Allen, 124 Mo.App. 465, 472, 103 S.W. 1090; Taussig v. Railway Co., 166 Mo. 28, 65 S.W. 969. These cases...
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