Munroe v. Birdsey

• Court: Florida Supreme Court
• Writing for the Court: PER CURIAM.
• Citation: Munroe v. Birdsey, 102 Fla. 544, 136 So. 886 (Fla. 1931)
• Decision Date: 27 July 1931
• Parties: MUNROE v. BIRDSEY et al.

136 So. 886

102 Fla. 544

MUNROE v. BIRDSEY et al.

Florida Supreme Court

July 27, 1931

En Banc.

Suit by Mary M. Birdsey and another against Sally Martin Munroe. From the final decree rendered, defendant appeals.

Reversed.

For former memorandum opinion, see 133 So. 80.

Syllabus by the Court.

SYLLABUS

The law (section 3207 Revised General Statutes of 1920, section 4999 Compiled General Laws of 1927) provides that nonresident parties to a partition suit may have thirty days within which to file their exceptions or objections to the commissioners' report.

A final decree in partition suit entered January 2, predicated on a commissioners' report dated December 5 preceding, will be reversed, when it does not fully appear that the chancellor gave due consideration to a motion to vacate and petition for rehearing, both being well grounded.

The decree pro confesso in a partition suit goes only to the form and content of the bill in chancery. The preparation and filing of the commissioners' report and entering exceptions thereto and final decree based thereon are new and independent steps in the cause, and are in no way affected by the decree pro confesso.

The question of attorney's fees is a very delicate on to treat. The law authorizes a fair, just, and reasonable compensation, comporting with the service rendered, but the elements that enter into the determination of such an amount are many and varied. The service performed, the responsibility incurred, the nature of the service, the skill required, the circumstances under which it was rendered, the customary charges for like service, the amount involved, and the ability of litigants to respond, may be mentioned as some of these elements.

Our statute laying costs in partition suits (section 3209 Revised General Statutes of 1920, section 5001, Compiled General Laws of 1927) in effect provides that every party in interest shall be required to pay a portion of the costs and charges, including the fee of complainant's solicitor, in proportion to his interest.

When the title to lands involved in a partition suit is not in litigation, and the sole question presented is that of making a fair allotment, the value of the lands has little or no place in determining a proper fee to be allowed. Appeal from Circuit Court, Marion County; W. S. Bullock judge.

COUNSEL

D. Niel Ferguson and R. L. Anderson, both of Ocala, for appellant.

Martin & Hocker, of Ocala, for appellees.

OPINION

PER CURIAM.

The appellees exhibited their bill in chancery for partition in the circuit court of Marion county, as authorized by section 3202 et seq., Revised General Statutes of 1920 (section 4994 et seq., Compiled General Laws of 1927). A demurrer to the bill on the part of Sally Martin Munroe, the sole defendant therein, was overruled, and decree pro confesso was entered for failure to further plead. A decree of partition was seasonably entered, and commissioners were appointed to make partition. The commissioners qualified and partitioned the lands as directed by order of the court, and made a full report thereof in writing.

The report of the commissioners was filed December 5, 1928, and on January 2, following, the court entered its final decree confirming said report. The final decree also adjudicated title to the lands designated by the commissioners to the parties to this cause to be in them, and awarded fees for complainant's solicitors in the sum of $4,500. That final decree was affirmed by order of this court without opinion dated April 2, 1931, 133 So. 80. A petition for rehearing was denied, and the case is now presented on supplemental petition for rehearing.

There were ten assignments of error, all of which have been considered, but we deem it necessary at this time to discuss only those relating to exceptions to the report of the commissioners and awarding counsel fees.

The record discloses that there were three thousand, eighty-seven and ninety-seven one hundredths acres of land involved in this suit, that Mary M. Birdsey and Salley Martin Munroe each owned an undivided three-eighths interest in said lands, and that Albert H. Birdsey owned an undivided two-eighths interest. There was no question of title, right, or interest to be litigated, no controverted questions were involved, but the sole and only question at issue was that of making a fair and equitable distribution of the lands among the three claimants.

All the parties to this cause were nonresidents. The law (section 3207 Revised General Statutes of 1920, section 4999 Compiled General Laws of 1927) provides that nonresident parties to a partition suit may have thirty days within which to file their exceptions or objections to the commissioners' report. The commissioners' report was filed December 5 1928, and the final decree was entered January 2, following. On January 14 appellant here, who was defendant below, petitioned for rehearing, and moved to vacate the final decree. The petition and the motion were predicated on alleged inequalities in the partition of the lands as made by the commissioners and approved by the final decree, but both were denied.

The final decree was affirmed by ...