Mabry v. Mudd

• Decision Date: 16 April 1937
• Docket Number: 29892.
• Citation: 272 N.W. 574,132 Neb. 610
• Parties: MABRY ET AL. v. MUDD ET AL.
• Court: Nebraska Supreme Court

272 N.W. 574

132 Neb. 610

MABRY ET AL. v. MUDD ET AL.

No. 29892.

Supreme Court of Nebraska.

April 16, 1937

Syllabus by the Court.

1. Where partition proceedings are amicable and for the benefit of all the parties in interest, the court may allow a reasonable attorney's fee to be paid by the parties in proportion to their interest in the property involved.

2. When the trial court fails to make a just and equitable allowance of attorney's fees, and such failure amounts to an abuse of judicial discretion, this court will, in a proper proceeding, correct it.

Appeal from District Court, Douglas County; Dineen, Judge.

Action by Rose S. Mabry and others against Minnie Mudd and others. From an order allowing an attorney's fee in the amount of $5,810 to Sidney W. Smith as attorney for the plaintiffs defendant Minnie Mudd and others appeal.

Affirmed as modified.

Gaines, McLaughlin & Gaines, of Omaha, for appellants.

Sidney W. Smith, of Omaha, for appellees.

Heard before GOSS, C. J., and ROSE, GOOD, EBERLY, DAY, PAINE, and CARTER, JJ.

CARTER, Justice.

This is a partition suit commenced by plaintiffs to secure the partition of certain property in Douglas county. Upon confirmation of the referee's sale, the trial court allowed plaintiffs' attorney an attorney's fee in the amount of $5,810. From the order allowing this fee, certain of the defendants herein designated as appellants have appealed to this court.

The record discloses that on September 20, 1935, Sidney W. Smith, as attorney for the plaintiff, commenced this suit in the district court for Douglas county praying for the partition of the property set forth in the petition and that, in the event that said property could not be equitably partitioned, it be sold and the proceeds distributed to the persons entitled thereto according to law. The record further discloses that said property was sold by the referee on February 7, 1936, for the sum of $58,100. On February 13, 1936, plaintiffs moved for a confirmation of the sale and for an order fixing the fees of the attorney and the referee. On February 17, 1936, the court confirmed the sale and fixed the fees of the referee at $750 and those of the attorney at $5,810. On April 7, 1936, the referee filed his final report, and on April 17, 1936 the appellants herein filed a motion objecting to the allowance of the attorney's fee in the amount of $5,810 and asked the court to set aside the allowance. The trial court overruled this motion on April 29, 1936, and approved the final report of the referee. On the same date a notice of appeal from the allowance of the attorney's fee was filed in the district court in said suit. No bill of exceptions was filed in the appeal. The only question presented is whether the allowance of the attorney's fee in the sum of $5,810 is sustained by the record before us.

The record discloses that the partition suit was one for the benefit of all the parties in interest and of an amicable nature. In such a case, the court may allow a reasonable attorney's fee to be paid by the parties in proportion to their interests in the property involved. Johnson v. Emerick, 74 Neb. 303, 104 N.W. 169, 12 Ann.Cas. 851.

Appellee contends that, as there is no bill of exceptions, there is nothing for this court to consider. The record discloses that the proceeding was the usual kind commenced in such cases. There was no unusual question of fact to be determined nor any peculiar or intricate proposition of law to be solved. The trial judge was undoubtedly familiar with the professional work required and could not have been materially assisted in arriving at a proper fee by the taking of evidence. In such a case, the trial court has before it the facts necessary upon which to determine the reasonableness of the fee to be fixed. If special or unusual services were required of the attorney, we can see where the adducing of evidence might be required to sustain the finding of the court, but such does not appear to be the case in the suit at bar.

The question resolves itself into this: Did the trial court abuse its discretion in allowing an attorney's fee of $5,810 in a partition suit involving no unusual or unique questions of fact or law where the property involved sold for $58,100?

It is impossible...