Furey v. Crawford County

• Decision Date: 23 May 1973
• Docket Number: No. 55796,55796
• Citation: 208 N.W.2d 15
• Parties: James FUREY, Appellant, v. CRAWFORD COUNTY, Iowa, Appellee.
• Court: Iowa Supreme Court

Page 15

208 N.W.2d 15

James FUREY, Appellant, v. CRAWFORD COUNTY, Iowa, Appellee.

No. 55796.

Supreme Court of Iowa.

May 23, 1973.

James Furey, pro se.

Thomas R. Eller, County Atty., Denison, for appellee.

Submitted to MOORE, C.J., and RAWLINGS, LeGRAND, REYNOLDSON and HARRIS, JJ.

REYNOLDSON, Justice.

Plaintiff attorney commenced a civil action against defendant Crawford County to recover compensation for services rendered by him as court-appointed counsel in two criminal cases. Trial court sustained defendant's motion to dismiss filed prior to answer. Plaintiff appeals and we affirm.

Plaintiff's petition included the following factual allegations: (1) he is an attorney at law; (2) pursuant to chapter 775, The Code, he was appointed to represent Lloyd Hansen in two criminal cases in Crawford District Court; (3) one of the criminal cases, No. 23217, was dismissed upon motion; (4) the other criminal case, No. 23218, was tried to a jury and is presently on appeal; (5) plaintiff is entitled to compensation for services rendered pursuant to the order appointing him counsel at public expense; (6) he wrote a letter to Judge James P. Kelley asking for a preliminary indication of the amount of attorney fees to which the judge thought he was entitled and requesting an opportunity to make a record if plaintiff had objections to the indicated amount; (7) Judge Kelley without further action by plaintiff entered an order setting fees and expenses at $771.25 in No. 23218, which amount was unreasonably parsimonious. Plaintiff alleged the order was arbitrary and capricious, amounted to a taking of plaintiff's property without just compensation and without due process, and denied him his rights to equal protection. Plaintiff prayed Judge Kelley's order be held null and void and for judgment against Crawford County in the sum of $3,000 for services rendered in both criminal cases.

Defendant filed motion to dismiss asserting (1) the county had no standing to pay fees to plaintiff in absence of a court order; (2) under § 775.5, The Code, compensation is set by the court not the county; (3) a jury or a court sitting as a jury does not have the power to alter the court order setting attorney fees; and (4) plaintiff's petition did not state whether it was in equity or at law.

Plaintiff's sole ground for resistance to the motion was, 'That any judgment rendered by this court would be an order made pursuant to Section 775.5 of the 1971 Code of Iowa.'

Trial court sustained the motion to dismiss, reasoning that only the court and not Crawford County could determine the total fee and that plaintiff's petition contained no allegation the county had refused to pay the fee allowed by Judge Kelley. Trial court ruled the county could not pay plaintiff an amount exceeding the fee already fixed by the court, and noted with respect to the dismissed criminal charge the fee was yet to be determined.

On appeal two issues are presented to us for decision: (1) May an attorney appointed to represent an indigent criminal defendant seek review of a prior court order setting his fees by instituting an independent civil suit against the county? (2) Was the county's motion to dismiss sufficiently drawn to raise the issue?

I. We treat first the question whether an attorney may sue the county in an independent civil action to obtain a court determination of reasonable compensation pursuant to § 775.5, The Code. It is clear plaintiff's petition did not state a common-law cause of action in contract or quantum meruit. First, plaintiff rendered his services to the criminal defendant, not to the county. Second, had the petition permissibly stated a common-law action in assumpsit, then either party could have demanded a jury trial. See Art. I, § 9, Constitution of Iowa; rule 177, Rules of Civil Procedure. The concept that a jury rather than the court would determine the amount of reasonable compensation, would totally nullify the effect and intent of those words found in § 775.5, The Code, 'to be decided in each case by the court.' We cannot approve this result.

We find persuasive the language and rationale of the following dicta in Board of Com'rs v. Moore, 93 Ind.App. 180, 189, 166 N.E. 779, 782 (1929):

'It is provided by statute (section 2248, Burns' 1926) the judge before whom the trial is had shall have authority to appoint counsel, but the amount of compensation to such counsel shall be settled and allowed by the judge of the court from which the change of venue was first granted.

'If counsel appointed to defend should be permitted to file a formal complaint against the county and recover for the services rendered upon the theory of a contract to pay such sum as the services rendered were reasonably worth, then the above statute would be entirely nullified. His said action would be the common-law action of assumpsit; being a common-law action, a civil case, the plaintiff would, under the provisions of section 20, art. 1, of our Constitution, be entitled to a trial by jury, and thus again would the provisions of said section 2248 be set aside, nullified. We hold that a suit by formal complaint against the county for the services rendered as upon a contract will not lie, and that the demurrer to the said complaint should for this reason have been sustained.'

Moore was later specifically overruled on other grounds in Knox County Council v. State, 217 Ind. 493, 29 N.E.2d 405, 130 A.L.R. 1427 (1940). The Knox case is not inconsistent with the result we reach today, there being no indication the lawyers there involved could have brought an action against the county prior to having their fees allowed by the court. Similar persuasive language is found in Johnson & Douglas v. Superior Court, 2 Ariz.App. 407, 410, 409 P.2d 566, 569, vacated on other grounds, 101 Ariz. 373, 419 P.2d 730 (1966).

Having concluded plaintiff's petition did not state a common-law action upon which relief could be granted, we must determine whether § 775.5 authorizes a special, independent cause of action against the county which would afford plaintiff relief. A fair reading of § 775.5 and the related chapter 775 statutes In pari materia does not convince us such cause of action exists. It is apparent any proceeding to determine reasonable compensation for an attorney appointed to represent an indigent criminal defendant is ancillary to the principal criminal case.

Obviously the appropriate procedure is for the attorney to file an application or motion captioned in the criminal case, directed to the court, requesting the amount of reasonable compensation to be fixed and awarded. The attorney should attach to his motion an affidavit disclosing any payment he has or may receive on behalf of his client as required by § 775.6, The Code.

The procedure would be simplified, and a better record made for review, if the attorney would also attach a supporting affidavit itemizing time spent and stating facts relevant to the difficulty and importance of the issues involved in the case, the responsibility assumed, his...