Plank v. Hertha

• Decision Date: 14 November 1906
• Citation: 109 N.W. 732,132 Iowa 213
• Parties: JOHN PLANK, Appellant, v. BARBARA HERTHA, and certain premises in Quasqueton, Iowa, Appellee
• Court: Iowa Supreme Court

109 N.W. 732

132 Iowa 213

JOHN PLANK, Appellant, v. BARBARA HERTHA, and certain premises in Quasqueton, Iowa, Appellee

Supreme Court of Iowa, Des Moines

November 14, 1906

Appeal from Buchanan District Court.-- HON. A. S. BLAIR, Judge.

SUIT in equity to enjoin a liquor nuisance. The trial court granted a decree, as asked, but refused to tax an attorney's fee for plaintiff's attorney. Plaintiff appeals.--Reversed and remanded.

Reversed and remanded.

E. R Acres, for appellant.

No appearance for appellee.

OPINION

DEEMER, J.

The action is by a private citizen to enjoin a liquor nuisance under section 2406 of the Code. Decree was rendered as prayed, and order of abatement made, but the court refused to tax attorney's fee for plaintiff's attorney. The latter part of section 2406 reads as follows: "If plaintiff is successful in the action an attorney's fee of $ 25.00 shall be taxed as costs in his favor." These costs may be taxed whether the action is instituted in the name of the State of by a private individual. Farr v Seaward, 82 Iowa 221, 48 N.W. 67. Section 2429 of the Code also provides for the taxation of attorney's fees in an action of this character; the statute reading that the court shall allow the attorney prosecuting the case a reasonable sum for his services. We need not determine which of these statutes is applicable, for under either plaintiff was entitled to have an attorney's fee taxed.

While we have no argument for appellee, it would seem that the court refused to tax the fee, either because the attorney who appeared was not plaintiff's attorney, or because he was paid for his services by someone else. It is true that plaintiff said he did not employ the attorney who was ostensibly appearing for him, and did not become responsible to him in any manner; but it also appears that he consented to the prosecution of the suit in his name, and that when called as a witness he stated that he was the plaintiff, and gave testimony against the defendant. Under such circumstances, plaintiff would be estopped to deny that Acres was his attorney. At any rate, there was such recognition of his appearance and such adoption of the proceedings by plaintiff as that he was entitled to have an attorney's fee taxed.

As to the other proposition, there is no testimony that the attorney had received, or was expecting to receive, any other compensation for his services in this case than that...