Croley v. Adkins

• Decision Date: 20 June 1947
• Parties: CROLEY et al. v. ADKINS et al.
• Court: Kentucky Court of Appeals

205 S.W.2d 332

305 Ky. 765

CROLEY et al. v. ADKINS et al.

Court of Appeals of Kentucky

June 20, 1947

Rehearing Denied Nov. 21, 1947.

Appeal from Circuit Court, Pulaski County; Edwin R. Denney, Judge.

Suit by Maria Adkins against L. B. Croley and others for the sale of land jointly owned by the parties, wherein the defendants filed a counterclaim and the parties thereafter entered into an agreed judgment and order of sale providing for sale of certain property and the partition of other property. From an order allowing an aggregate attorneys' fee of $2,500 to be paid out of the general fund and adjudging that plaintiff's attorneys should receive $1,500 of such fund and that defendants' attorney should receive $1,000 of such fund, the attorneys for each party appeal.

Affirmed.

W. B. Morrow, of Somerset, for appellants.

Bethurum & Neikirk, of Somerset, for appellees.

CLAY Commissioner.

This appeal involves a controversy over the allowance of attorney fees in a suit for the sale of land owned jointly by appellants Nannie Croley and Mattie Elliott (hereinafter referred to as 'defendants') and appellee Maria Adkins (hereinafter referred to as 'plaintiff'). Defendants are represented by attorney W. Boyd Morrow and plaintiff is represented by attorneys Bethurum & Neikirk. These attorneys have made themselves parties to this appeal.

On November 11, 1946, Bethurum & Neikirk filed suit on behalf of plaintiff against defendants for the purpose of selling several tracts of land in Pulaski County owned jointly by these three parties. Each party owned an undivided one-third interest, and the action was brought under Section 490 sub-section 2, Kentucky Civil Code. Defendants filed an answer and cross-petition which admitted: (1) the property was owned jointly as alleged in the petition, (2) it was in possession and could not be divided without materially impairing its value, and (3) it should be sold. The cross-petition asserted that certain large tracts of land should be divided and offered for sale in smaller parcels. Thereafter the parties pleaded back and forth, with numerous references to attorneys' fees and against whom they should be taxed.

Eventually on January 15, 1947, the parties entered into an 'Agreed Judgment and Order of Sale' which provided among other things for the partition of certain lands. Thereafter the property was sold for approximately $45,000. The real estate partitioned was valued at $20,000.

Subsequently defendants' attorney moved the Court for the allowance of an attorney's fee to be taxed as costs against the two defendants he represented, and later plaintiff's attorneys moved for an allowance of an attorney's fee to be paid out of the general fund in Court. The Court allowed an aggregate fee of $2,500 to be paid out of the general fund, and adjudged that plaintiff's attorneys should receive $1,500 of said sum and defendants' attorney should receive $1,000 of said sum.

Attorneys for both sides excepted to this order and both prayed an appeal to this Court.

Defendants' attorney insists that it was improper to allow plaintiff's attorneys any fee out of the general fund because of the fact that defendants were represented by their own counsel. On the other hand, plaintiff's attorneys object to allowing defendants' attorney anything out of the general fund because throughout the pleadings in the case he has insisted that his fee be taxed as part of the costs only against the two defendants he represented.

It seems to be conceded by counsel for both sides that under Sections 412.070 and 453.040, Kentucky Revised Statutes, it is proper in this type of case for the Chancellor to allow an attorney fee as part of the costs and charge it against the general fund in Court where only one attorney is employed. Counsel for defendants only objection is that his clients should not be compelled to pay a part of plaintiff's attorney fee since they had their own independent counsel. As a general rule defendants' position is sustained by a number of decided cases. Collins v. Hudson's Adm'x, 282 Ky 810, 140 S.W.2d 365; Bettes et al. v. Rogers et al., 281 Ky. 118, 135 S.W.2d 74; Howard et al. v. Carmichael et al., 237 Ky. 462, 35 S.W.2d 852; Whitehead v. Fulton, et al., 187 Ky. 717, 220 S.W. 531, and Bailey's Adm'rs v. Barclay, 109 Ky. 636, 60 S.W. 377.

We have reviewed these cases, and it appears evident that in all of them substantial issues were raised and there was a real controversy between the parties. Obviously it would be inequitable to compel a party to a law suit to pay his adversaries' attorney fee when there was an actual conflict of interest.

In our opinion the rule does not apply in the present case for the reason that the parties were not engaged in a truly adversary proceeding. While there were a number of pleadings on both sides, plaintiff and defendants and their counsel had identically the same objective in view and their interests in no way conflicted. As noted heretofore,...