Mahon v. Mahon

• Decision Date: 09 March 1965
• Docket Number: No. 51417,51417
• Citation: 133 N.W.2d 697,257 Iowa 563
• Parties: Roberta Nelson MAHON, Plaintiff, Cross-Appellant, v. Harry MAHON et al., Defendants, Merle E. Nelson, Defendant-Appellant.
• Court: Iowa Supreme Court

Page 697

133 N.W.2d 697

257 Iowa 563

Roberta Nelson MAHON, Plaintiff, Cross-Appellant, v. Harry MAHON et al., Defendants Merle E. Nelson, Defendant-Appellant.

No. 51417.

Supreme Court of Iowa.

March 9, 1965.

Margaret L. Beckley, J. C. Beckely, L. M. Hullinger, Sr., and David D. Mitchell, Cedar Rapids, for appellant.

Bailey C. Webber, Ottumwa, for plaintiff cross-appellant.

GARFIELD, Chief Justice.

A former appeal on another phase of this case was before us in Mahon v. Mahon, 254 Iowa 1349, 121 N.W.2d 103.

Defendant Merle E. Nelson, who owned a two-thirds undivided interest in a 250-acre farm in Van Buren county, has appealed from the district court's allowance of fees to the attorney for plaintiff Roberta Nelson Mahon, who owned the remaining one-third interest, in the action for partition of the farm. The same attorney, Bailey C. Webber, was also attorney for the referee in the action and the same defendant has appealed from the allowance of fees to Mr. Webber as such attorney.

Plaintiff Mrs. Mahon has cross-appealed from the trial court's denial of fees to Mr. Webber for services rendered to her in the former appeal to us of this case.

The decree appointed D. W. Harris, an attorney at Bloomfield, referee to sell the farm and divide the proceeds between the two owners. Until after he was appointed referee Mr. Harris was attorney for appellant Nelson who then engaged other counsel. The referee made a written contract on June 12, 1962, to sell the farm to J. E. Stecker for $50,000. A hearing on the matter of approving the contract was held July 20, 1962, at which higher bids for the farm were made. Mr. Stecker then finally bid $75,300 and the court approved the sale to him for this sum. Mr. Harris acted as auctioneer and Mr. Webber recorded the bids at this sale in the Van Buren county courthouse.

The purchaser settled for the farm on March 1, 1963. Mr. Harris filed application on April 24 for allowance of fees to him and Mr. Webber. (We decided the former appeal on April 9.) The application recited principally the services Mr. Harris performed. It also alleged Mr. Webber had acted throughout as attorney for Mrs. Mahon and her husband, defendant Harry Mahon, and in many instances their interests conflicted with the interest of the referee and he has been compelled to act independently of his counsel Mr. Webber.

On the day of the hearing on the referee's application Mr. Webber filed affidavit in respect to fees he claimed as attorney for Mrs. Mahon and the referee. At the hearing Mr. Webber made a narrative statement of what he had done for plaintiff and the referee and the fees he though he should have. He was then cross-examined by counsel for appellant Nelson. Mr. Harris then made a narrative statement of his doings as referee. He was then cross-examined by Mr. Webber and, very briefly, by appellant's counsel.

Mr. Webber offered in evidence 13 letters that passed between him and the referee and pen and ink statements by the former regarding rentals for the farm (which was occupied by the Mahons) and a proposal for partial distribution of proceeds of the sale to Stecker. The referee also offered in evidence correspondence between him and Mr. Webber, Mr. Stecker, the Mt. Pleasant office of the Federal Land Bank, holder of a mortgage on which a small balance was unpaid, and other correspondence of Mr. Harris as referee.

The trial court allowed Mr. Webber as attorney for plaintiff $1536, the maximum percentage permitted by rule 294, Rules of Civil Procedure, 58 I.C.A., infra, on the sale price of the real estate, plus $600 ($2136 total), under the last sentence of rule 294, on the theory the partition action was contested. Mr. Webber asked $750 additional fees for services to plaintiff on the former appeal to us. The court denied this request on the ground the services were not for the common benefit of the owners but related to a collateral issue by which plaintiff sought reimbursement from appellant because of enhanced value of the realty from improvements made by her.

The court allowed the referee and Mr. Webber as his attorney $2250 each as reasonable compensation under rule 295, Rules of Civil Rpocedure, infra.

Appellant Nelson contends the $600 should not have been allowed Mr. Webber and urges in support of the contention much the same ground on which an additional fee to him for services on the former appeal was denied. Appellant also contends the allowance of $2250 to Mr. Webber as attorney for the referee should not have been made and in any event is excessive. Appellant does not complain of the allowance to the referee and reluctantly accepts the allowance of $1536 to Mr. Webber as attorney for plaintiff.

I. Before considering the merits of the appeal we are moved to express disapproval of some of the things done--or perhaps we should say not done--in connection therewith.

The printed record contains 176 pages and cost $485 to print. One hundred two pages consist of facsimiles of all exhibits offered at the hearing on fees other than the entire court file in the action. Nearly all are letters or letter copies. Even the letterheads and pen and ink signatures are reproduced. In a few instances the original letter and a copy have been reproduced. Inclusion of these exhibits in the record in this manner apparently added over $400 to the cost of printing it. This was unnecessary and should have been avoided. These exhibits could have been certified and transmitted to us with a brief designation or description in the record of each exhibit material to the appeal.

The printed record evidently also contains a complete transcript of the narrative statements by Messrs. Webber and Harris and all the questions and answers on their cross-examination. No apparent attempt was made to omit what is not material to the appeals, to abstract the cross-examination 'in condensed or narrative form' or to show 'the trial court a good reason for setting out part of the testimony in question and answer form,' as rule 340(d), R.C.P., requires.

We have tried to minimize the cost of appeals to this court, sometimes with discouraging results. We now direct that only $264 ($1.50 per page) of the cost of printing the record be included in the costs of these appeals to be computed by the clerk. This reduction is less than it might and perhaps should be. We will say further it seems unfair for either appellant or cross-appellant to personally pay any of the difference of $221.

The appeal and cross-appeal were taken in July, 1963. Normally the printed record should have been filed within 90 days therefrom. Rule 342(a), R.C.P. However, the time was extended to April 1, 1964, and the record was filed that day, more than five months after the 90 days. Appellant's brief should have been filed within 45 days after the record was filed. Rule 343, R.C.P. It was not filed until seven months after the record was filed although it contains only 24 pages. No reply was filed. It should not have taken more than 16 months to prepare and file the record and briefs on these appeals.

II. Ordinarily a hearing on allowance of referee and attorney fees in a partition action is at law and our review is not de novo. Gabel v. Gabel, 254 Iowa 248, 250, 117 N.W.2d 501, 503, and citations.

Near the commencement of this hearing, when the first objection to an offer of evidence was made, the court announced 'The court will treat this hearing as a proceeding in equity and the evidence will be received subject to the objection, so you may make your record.' No objection to this announcement or criticism of it was made. The matter was heard, with apparent consent and acquiescence of the court and counsel, as a proceeding in equity.

We have frequently held we will ordinarily consider a case upon appeal as being in the same forum in which it was heard in the trial court. This would mean we would consider this appeal as in equity and review the evidence de novo. McCulloch Investment Co. v. Spencer, 246 Iowa 433, 436, 67 N.W.2d 924, 925-926, and citations; Knigge v. Dencker, 246 Iowa 1387, 1390, 72 N.W.2d 494, 495; Laughlin v. Franc, 247 Iowa 345, 347, 73 N.W.2d 750, 751-752.

However, appellant's brief twice recognizes, and cross-appellant's brief asserts, the record on this appeal is not reviewable de novo. Since the opposing briefs agree on this point, we are not justified in reviewing the evidence de novo and therefore treat the appeals as those from similar orders are usually considered.

III. Gabel v. Gabel, supra, 254 Iowa 248, 250-251, 117 N.W.2d 501, 503-504, thus states the rules governing appeals from such an order as we have here and summarizes rules 294 and 295, Rules of Civil Procedure: 'The burden of proof is on the applicants to show the reasonable value of the necessary services rendered. In addition to oral testimony the court should consider the services rendered as shown by the file before it. The court is an expert on what are reasonable attorney and referee fees. * * * The trial court has considerable discretion in fixing attorney and referee fees, the exercise thereof must be reasonable and not arbitrary, and the allowance made must be supported by the evidence and other matters necessarily involved. When it appears the allowance made is manifestly inadequate or clearly excessive, showing an abuse of discretion and arbitrary action, it becomes our duty to make a proper allowance. (citations)

'In determining a reasonable attorney fee, generally the time necessarily spent, the nature and extent of the service, the amount involved, the difficulty of handling and importance of issues, responsibility assumed and the results obtained, as well as the standing and experience of the attorney in the profession should be considered. * * * There is also another factor, the increase in the cost of personal services in our economy generally. * * *

'Rule 294 provides the maximum fees for plaintiff's attorney based on the...