Kilmer v. Gallaher

• Decision Date: 22 May 1903
• Citation: 95 N.W. 180,120 Iowa 575
• Parties: J. M. KILMER, Appellant, v. D. W. GALLAHER
• Court: Iowa Supreme Court

95 N.W. 180

120 Iowa 575

J. M. KILMER, Appellant, v. D. W. GALLAHER

Supreme Court of Iowa, Des Moines

May 22, 1903

Appeal from Harrison District Court.--HON. N.W. MACY, Judge.

THE plaintiff sued on a note and attached the defendant's property. The defendant counterclaimed on the bond and recovered a judgment thereon against the plaintiff. Both parties appeal. The plaintiff will be termed the appellant.

Affirmed.

No appearance for appellant.

H. L Robertson, W. H. Killpack and Bolter & Bolter for appellee.

OPINION

SHERWIN, J.

The appellant has filed no argument, and his appeal is therefore dismissed. This case has been twice tried in the district court, and this is the second appeal to this court. The first trial below resulted in a verdict for the defendant, but before a judgment was rendered thereon, one of the defendant's counsel agreed to a settlement of the case whereby a judgment was rendered against the defendant on the note, and against the plaintiff for an attorney's fee of $ 75. The settlement was held invalid by this court (see Kilmer v. Gallaher, 112 Iowa 583, 84 N.W. 697), and upon a retrial of the case in the district court the defendant was allowed an attorney's fee of $ 150, but the court credited thereon the $ 75 paid to the defendant's attorneys under the former judgment. Section 3887 of the Code is the only statute we have permitting the taxation of an attorney's fee as a part of the costs which may be recovered in a suit on an attachment bond, and without this statute no such fee could be allowed. Vorse v. Phillips, 37 Iowa 428. That such fee, when allowed, is to be taxed as a part of the costs, is held in Weller v. Hawes, 49 Iowa 45; Union Mercantile Co. v. Chandler, 90 Iowa 650, 57 N.W. 595. The only authority given the district court by this statute is to allow a reasonable fee for the prosecution of the action in that court. It does not permit the court to allow an additional amount for the prosecution of, or defense to an appeal to this court, because to so hold would give that court the power to determine what costs on appeal should be paid by either party, which is a matter exclusively within the jurisdiction of this court, except where otherwise provided by law. Furthermore, the language of the statute clearly shows that the allowance is to be limited to the fee earned at the time final judgment is rendered in the district court, for it is a part of the costs which follow the trial and determination there that the attachment was wrongfully sued out. This being true, the district court properly refused to allow the appellee an attorney's fee for the prosecution of the former appeal. Nor does the statute under consideration authorize this court to allow a fee for the trial of such cases here, and no case has been called to our attention which holds that we have such power.

On the last trial of the...