Summerville v. North Platte Val. Weather Control Dist.

• Decision Date: 10 February 1961
• Docket Number: No. 34878,34878
• Parties: Lorin R. SUMMERVILLE, Appellant, v. NORTH PLATTE VALLEY WEATHER CONTROL DISTRICT, a corporation, et al., Appellees, Consolidated in District Court with Lorin R. SUMMERVILLE, Appellant, v. P. Cooper ELLIS, County Treasurer of Scotts Bluff County, Nebraska, et al., Appellees.
• Court: Nebraska Supreme Court

Page 425

107 N.W.2d 425

171 Neb. 695

Lorin R. SUMMERVILLE, Appellant, v. NORTH PLATTE VALLEY WEATHER CONTROL DISTRICT, a corporation, et al., Appellees, Consolidated in District Court with

Lorin R. SUMMERVILLE, Appellant, v. P. Cooper ELLIS, County Treasurer of Scotts Bluff County, Nebraska, et al., Appellees.

No. 34878.

Supreme Court of Nebraska.

Feb. 10, 1961.

Syllabus by the Court

1. Where one has gone into a court of equity, and, taking the risk of litigation on himself, has created or preserved or protected a fund in which others are entitled to share, such others will be required to contribute their share to the reasonable costs and expenses of the litigation, including reasonable fees to the litigant's counsel.

2. An allowance for attorney's fees and expenses in such cases can only be made after the services have been rendered, the litigation has been successfully terminated, and a determination made that actual benefit has accrued to others in the class.

3. A petition for an allowance of attorney's fees and expenses in such cases is an independent proceeding, supplemental to the original proceeding, and not a request for a modification of the original judgment.

4. A petition for an allowance of attorney's fees and expenses in such cases may be filed after the expiration of the term at which the original judgment was entered.

5. The right to an allowance of attorney's fees and expenses in such cases is not waived by a failure to include a request for such an allowance in the original petition.

Atkins & Ferguson, Clark G. Nichols, Scottsbluff, for appellant.

Lyman & Winner, W. H. Kirwin, Scottsbluff, for appellees.

Heard before SIMMONS, C. J., and CARTER, MESSMORE, YEAGER, WENKE, SPENCER, and BOSLAUGH, JJ.

BOSLAUGH, Justice.

This proceeding was commenced by the filing of an application for the allowance of attorney's fees and expenses from a fund that was alleged to have been rescued and preserved as a result of the litigation in which the 1957 Weather Control Act of Nebraska, R.S.Supp.1957, §§ 2-2410 to 2-2427, was determined to be unconstitutional and void in Summerville v. North Platte Valley Weather Control Dist., 170 Neb. 46, 101 N.W.2d 748. The parties in this proceeding are identical with the parties in the former appeal.

The decree of the district court in the original action declared the statute in question to be unconstitutional and void; enjoined the county treasurer of Scotts Bluff County, Nebraska, from disbursing any of the taxes levied by the defendant Weather Control District; and retained jurisdiction of the cause for the distribution of such taxes in the hands of the county treasurer.

The appellant, who will be referred to herein as the plaintiff, filed his application for the allowance of attorney's fees and expenses on April 2, 1960. The mandate of this court was filed in the district court on April 4. On April 19 the plaintiff served a notice of hearing on the application upon the attorneys of record for the appellees, who will be referred to herein as the defendants.

The application was heard on May 10, 1960, and taken under advisement. On May 23 the district court found that it was without jurisdiction 'at this late date' to grant the application of the plaintiff for the allowance of attorney's fees. The plaintiff then perfected an appeal to this court.

The plaintiff's assignment of error is that the trial court erred in finding that it was without jurisdiction to grant his application.

The parties agree that where one has gone into a court of equity and, taking the risk of litigation on himself, has created or preserved or protected a fund in which others are entitled to share, such others will be required to contribute their share to the reasonable costs and expenses of the litigation, including reasonable fees to the litigant's counsel. Gamboni v. County of Otoe, 159 Neb. 417, 67 N.W.2d 489.

The trial court did not assign any reason for its finding that it was without jurisdiction. The defendants argue that the trial court had no jurisdiction for the reason that the plaintiff filed his application after the expiration of the term at which the original decree was rendered. The record does not show when the various terms expired but, for the purpose of this opinion, we have assumed that the plaintiff's application was filed at a term after the term in which the original decree was rendered.

The defendants further argue that since the original decree ordered the defendants, or one of them, to pay the costs of the action, the court cannot at a subsequent term make an allowance of attorney's fees and expenses from a fund created, preserved, or protected by the litigation which resulted in the original decree. The defendants state that if the court were to grant the plaintiff's application, the court would be modifying a judgment after term when its jurisdiction had expired.

The defendants have confused the allowance of expenses and attorney's fees from a fund rescued or preserved by litigation with the award or taxation of costs as between adversary parties. It is true that as to the latter the court after term has but limited power with respect to changes or modification in the taxation and award of costs. Rehn v. Bingaman, 152 Neb. 171, 40 N.W.2d 673.

The allowance of expenses and attorney's fees to a litigant who has carried on litigation at his own expense which results in the rescue and preservation of a fund in which a number of parties will share is a different matter and is governed by different principles. The allowance of the fees and expenses requested by the plaintiff is a matter that is dependent, in the first instance, upon the litigation being successful. It is a matter which, properly, is not before the court until the litigation has ended. In Blacker v. Kitchen Bros. Hotel Co., 133 Neb. 66, 273 N.W. 836, 838, the court said: 'Where one goes into a court of equity, and...