Tanner v. Tanner

• Decision Date: 29 April 1918
• Docket Number: No. 12619.,12619.
• Citation: 203 S.W. 239,199 Mo. App. 145
• Parties: TANNER v. TANNER et al.
• Court: Missouri Court of Appeals

203 S.W. 239

199 Mo. App. 145

TANNER v. TANNER et al.

No. 12619.

Kansas City Court of Appeals. Missouri.

April 29, 1918.

Appeal from Circuit Court, Chariton County; Fred Lamb, Judge.

Suit for partition by Charles Monroe Tanner against Enos Marion Tanner and another. On motion for allowance of a fee to plaintiff's attorneys. From a judgment allowing the motion taxing the fees as costs and making them a lien on the land, and an order for special execution, defendants appeal. Affirmed.

Roy Rucker, of Keytesville, for appellants. Mark A. McGruder, of Sedalia, and Jno. D. Taylor, of Keytesville, for respondent.

TRIMBLE, J.

This controversy is over the allowance of a fee to the attorneys of plaintiff in a partition suit.

It seems that in 1914, one John Harrison Tanner died intestate, owning 160 acres of land in Chariton county, and leaving only three heirs, namely, Charles Monroe Tanner, the plaintiff herein, and the two defendants Enos Marion Tanner and Bertha Tanner Peterson. No administrator was applied for or appointed upon his estate, and in 1916 Mark A. McGruder and John D. Taylor, attorneys, were employed by the plaintiff, Charles Monroe Tanner, to bring suit to partition the lands of which said John Harrison Tanner died seised and possessed; it being agreed between plaintiff and said attorneys that they should have for their services a reasonable attorney's fee to be allowed by the court and taxed as costs in said cause. Pursuant to said agreement, said attorneys brought said partition suit in due form, and thereafter the defendant Enos Marion Tanner applied to the probate court for letters of administration on John Harrison Tanner's estate, and letters were issued thereon. Said Enos Marion Tanner then presented claims aggregating $3,300 against said estate and the same were allowed in his favor. Thereupon said two defendants set up, in the partition suit, the allowance of said claims against said estate and the lack of any personal funds out of which to pay same and prayed that said partition suit be abated for that reason. The partition suit was tried however, and at the November term, to wit, on December 5, 1916, judgment for partition was rendered; the court finding that the lands were not susceptible of partition in kind, finding also that claims had been allowed against said estate to the extent of $3,300, and that there were not sufficient personal assets to pay the debts of said estate. It was thereupon adjudged and decreed that the land be sold for cash, but that the proceeds thereof—

"be held by the sheriff until the administration of the said estate shall have been completed to the extent of allowing all valid claims, and he shall then, upon the further order of this court, pay such sums to the administratcr of the estate of John Harrison Tanner as shall be necessary to complete the administration finally, and shall hold such other and further proceeds of said sale subject to the order of distribution between the parties as shall hereafter be made by the court, and the cause is continued to the next term."

Thereafter the defendant Enos Marion Tanner privately purchased the interest of the plaintiff, Charles Monroe Tanner, and of his codefendant Bertha Tanner Peterson in said real estate and had the same duly conveyed to him by deed, all of which was done without the knowledge of plaintiff's attorneys, and immediately after such conveyance said Charles Monroe Tanner left the state, and his whereabouts is now unknown. At the May, 1917, term of the circuit court, the defendant Enos Marion Tanner, sole owner of all of said land, being about to have the partition suit abated, said attorneys McGruder and Taylor filed a motion in said cause to have an attorney's fee allowed and taxed as costs, setting up all the facts and alleging that at the time Enos Marion Tanner purchased the interests of his coheirs he was fully aware of the pendency of said partition suit, having participated therein, and was fully aware of the rights and interests of said attorneys and of the services they had rendered and of their right to have a fee allowed therefor, and that they had not been paid. Defendant Enos Marion Tanner appeared to said motion and filed an answer thereto admitting that he had purchased the interests of the plaintiff and of his codefendant and was new the sole owner of said land, but prayed the court to deny said motion. The hearing thereof was had on June 23, 1917, and the court after listening to the evidence found the facts as hereinbefore stated; found that said attorneys faithfully represented plaintiff in all things pertaining to said suit in partition and performed all duties necessary for them to perform; that no sum for attorney fees had been paid; and that Enos Marion Tanner at the time of his purchase knew that such attorney's fees had not been paid. The court further found that said attorneys were entitled to a reasonable attorney's fee for the services they had rendered in said cause to be taxed as costs therein, and fixed said fee at $400 and directed that it be taxed as costs in the case and made a lien on the land, describing it, and ordering special execution to issue therefor. From the action of the court on said motion, defendant Enos Marion Tanner has appealed. It is agreed that the reasonable value of the farm is $12,000.

The contention of appellant is that the circuit court was without jurisdiction to order partition of the land in question because it affirmatively appeared that there were debts against the estate and there was no other property out of which the same could be paid. Waiving the question (if there is any), as to whether this appeal from the order of the court on said motion can attack the jurisdiction of the court to adjudge partition at the time such judgment was rendered, we proceed to a consideration of the above contention....