McMillan v. Northport Smelting & Refining Co.

• Decision Date: 27 March 1908
• Citation: McMillan v. Northport Smelting & Refining Co., 49 Wash. 76, 94 P. 761 (Wash. 1908)
• Court: Washington Supreme Court
• Parties: McMILLAN v. NORTHPORT SMELTING & REFINING CO.

94 P. 761

49 Wash. 76

McMILLAN v. NORTHPORT SMELTING & REFINING CO.

Supreme Court of Washington

March 27, 1908

Appeal from Superior Court, Stevens County; Henry L. Kennan, Judge.

Action by Anthony J. McMillan in his own behalf, and in behalf of others similarly situated, against the Northport Smelting &amp Refining Company. From a judgment granting relief, both parties appeal. Reversed and remanded.

Root Fullerton, and Crow, JJ., dissenting.

Nuzum &amp Nuzum, for plaintiff.

Voorhees & Voorhees and Charles Francis Voorhees, for defendant.

MOUNT J.

The only question in this case is the reasonableness of an attorney's fee. The facts are as follows: On October 24 1905, the plaintiff brought an action in the superior court of Stevens county against the Northport Smelting & Refining Company, A. I. Goodell, and John H. Mackenzie to restrain the defendants from dismantling the Northport smelter, and from removing certain machinery therefrom. On the same day the complaint and affidavit were presented ex parte to the judge of the court, and a temporary emergency restraining order was issued, the plaintiff furnishing a bond in the sum of $1,000. November 6, 1905, was fixed for the hearing on the application for a restraining order. The order was regularly served. No appearance was made by the defendants to the complaint or to resist the restraining order, and the same was continued in force from time to time by order of the court, without resistance. Afterwards on September 26, 1906, the plaintiff filed his supplemental complaint, alleging that there was no longer any necessity for the restraining order, and praying to have the action dismissed, and for an allowance for attorney's fees against the property of the Northport Smelting & Refining Company. The defendant appeared at the hearing on this supplemental complaint, and resisted only the amount of the claim for attorney's fees. At this hearing the court found that the restraining order saved to the smelting company the property of the company value at $250,000 to $275,000, that $165.85 had been expended in that behalf by the plaintiff, and that $3,500 was a reasonable fee to be paid to the plaintiff's attorneys. Both parties have appealed.

The defendant alleges that the allowance of $3,500 is excessive and plaintiff claims that $10,000 is a proper fee. The record shows the parties stipulated at the hearing on the reasonableness of the fee that certain...