Donaldson v. Allen

• Citation: 213 Mo. 293,111 S.W. 1128
• Parties: DONALDSON et al. v. ALLEN et al.
• Decision Date: 03 July 1908
• Court: United States State Supreme Court of Missouri

111 S.W. 1128

213 Mo. 293

DONALDSON et al. v. ALLEN et al.

Supreme Court of Missouri, Division No. 1.

July 3, 1908.

1. APPEAL AND ERROR — REVIEW — PRESUMPTIONS —ATTORNEY'S FEES.

It will be presumed on appeal that the trial court in partition proceedings knew the character of legal services rendered, as to duration, zeal, and ability, and their value according to custom, place, and circumstance, and that the court did not err in gauging the amount of the fee.

2. PARTITION—ATTORNEY'S FEES.

In partition proceedings, where, under order to a special commissioner, sales were made aggregating about $100,000 in proceeds, and the character and extent of the estate and titles involved, and the legal services rendered, strictly incident to the partition itself, called for the judgment of counsel from the time data for the suit were gathered until the final order of distribution,

a fee of $5,000 was not excessive, if any fee could be allowed.

3. SAME—ATTORNEY'S FEES—STATUTES.

The uniform and long continued practice, acquiesced in by the legal profession, of allowing attorney's fees in cases of equitable partition, though not conclusive, is strong evidence to be considered in determining the right to such fees, under Rev. St. 1899, § 4422 (Ann. St. 1906, p. 2428), which allows such fees in an action for partition brought under that article.

4. SAME.

Rev. St. 1899, §§ 4375-4378 (Ann. St. 1906, pp. 2412-2414), relating to partition, contemplates that parties having a present or future, a vested or contingent, interest shall be made parties. Section 4386 (Ann. St. 1906, p. 2417) provides that issues of fact shall be determined, and the rights, titles, and interests shall be declared. Section 4389 provides that adverse claims may be decided. Held, that the provisions of the sections are broad enough, in view of the maxim that equity follows the law, to embrace an equitable partition proceeding, to the extent that, under section 4422 (Ann. St. 1906, p. 2428), providing that a reasonable fee shall be allowed to the attorneys bringing a suit under the article, relating to the partition of real property, which shall be taxed and paid as other costs in the case, such fees may be allowed in an equitable partition suit, to be restricted to the partition proper, and not extended to payment for services on incidental issues determined.

Appeal from St. Louis Circuit Court; Daniel G. Taylor, Judge.

Suit for partition by Elizabeth L. Donaldson and others against William Russell Allen, Thomas Allen, and others. From the decree of distribution, and an order denying a new trial, defendant Thomas Allen appeals. Affirmed.

Henry W. Allen, for appellant. Judson & Green, Albert Arnstein, Henry Wollman, and W. R. Donaldson, Jr., for respondents.

LAMM, J.

The suit was equitable partition. The interlocutory decree found the main equitable issues for plaintiffs, ordered a receivership and accounting, determined the moieties of the co-tenants, and decreed partition (with other relief not pertinent here). From that decree, cross-appeals were prosecuted (Donaldson v. Allen, 182 Mo. 626, 81 S. W. 1151), resulting in affirmance. When our mandate went down, the court appointed commissioners to make partition. On their report coming in that the land was not susceptible of division in kind, an order of sale was entered, and a special commissioner appointed to make it. Sale was made, and the commissioner reported his doings in executing the powers donated by the order. Thereat plaintiffs applied for an allowance of reasonable attorney's fees. Proof was put in, in that behalf, and the court entered an order allowing $5,000, taxing the same as costs. Thereat a final decree and order of distribution was entered, directing (among other things) the special commissioner to pay the clerk of the court said sum for plaintiffs' attorneys. On due exceptions saved to the final decree, and to overruling a motion for a new trial, one of defendants, Thomas Allen, appeals.

1. A preliminary question is lodged. Thus, somewhat by way, possibly of makeweight, arguendo, some contention is made that the fee is excessive, but we deem this phase of the case to not amount to much. This, because:

(a) In the first place learned counsel himself makes little of it. He guardedly selects the ground upon which he pitches his battle, by precisely defining his position, singly and laconically, as follows: "Appellant's contention on this appeal is that no fee should have been allowed to attorneys for plaintiffs below, for the reason that there is no authority under our statutes, or in equity, for such an allowance." As we construe it, then, the case by necessary implication hinges on that proposition in counsel's mind, and on no other. This being so, we may safely allow it to proceed on that theory.

(b) Secondly, the whole record was before the court below, and the judge deciding the point presumptively knew the character of the services rendered in duration, zeal, and ability. He presumptively knew the value of them according to custom, place, and circumstance. Eddie v. Eddie, 138 Mo., loc. cit. 607, 39 S. W. 451; Liles v. Liles, 116 Mo. App., loc. cit. 425, 91 S. W. 983. In this view of the matter, there is room for a most violent presumption that the trial court did not err in gauging the quantum of the fee.

(c) Finally, if we look even to the bare outline of facts as presented to us, we discern that, under the order to the special commissioner, sales were made aggregating well on to $100,000, in proceeds; and we can well see that the character and extent of the estate and titles involved, and legal services rendered strictly incident to the partition itself, calling for the trained eye and judgment of counsel (from the start, to wit, the time data for the suit were gathered, and the petition drafted down through all the intermediate steps to the end, to wit, the final order of distribution) were such that a fee of $5,000 was little enough, if any at all could be allowed.

Semble, a very ancient rule forbidding muzzling the ox that treadeth out the corn is applicable to attorneys and their fees (Reynolds v. Clark County, 162 Mo., loc. cit. 684, 63 S. W. 382), and may be profitably used here a little, with discrimination.

2. The main question is not only interesting, but fruitful, and is somewhat new to appellate courts in Missouri. It may be put in this way: In an equitable partition, as contradistinguished from a strict statutory partition (so-called), is plaintiff entitled to an allowance for attorney's fees to be taxed as costs and paid pari passu? Plaintiffs' counsel say "Yes." Defendant's says, "No." The evolution of the latter's argument is as follows: Costs are the creatures of statutes. Such statutes are in derogation of the common law, and to be strictly construed. Attorney's fees are not allowed under the general provisions of statutes relating to costs. Hence plaintiffs must put a finger on an express statute allowing such. In this instance the partition statute (Rev. St. 1899, § 4422 [Ann. St. 1906, p. 2428]) limits the allowance of a reasonable attorney's fee to those attorneys bringing a suit "under this...