Warm Springs Irr. Dist. v. Pacific Live Stock Co.

• Decision Date: 28 May 1918
• Citation: 89 Or. 19,173 P. 265
• Parties: WARM SPRINGS IRR. DIST. v. PACIFIC LIVE STOCK CO.
• Court: Oregon Supreme Court

173 P. 265

89 Or. 19

WARM SPRINGS IRR. DIST. v. PACIFIC LIVE STOCK CO.

Supreme Court of Oregon

May 28, 1918

In Banc.

Appeal from Circuit Court, Baker County; Gustav Anderson, Judge.

Action by the Warm Springs Irrigation District against the Pacific Live Stock Company. From a ruling of the court denying defendant judgment for attorney's fees, defendant appeals. Affirmed.

Plaintiff commenced this proceeding in eminent domain against defendant, and alleged, among other things, that plaintiff tendered to defendant the sum of $25,000, for the lands desired to be taken for a dam and reservoir site and right of way and operation of an irrigation system, which defendant refused to accept. Defendant answered, and set up that it had employed counsel to defend the action, and asked judgment for the value of their services. Plaintiff moved the court to dismiss the proceedings, without prejudice. Defendant requested the court to impose as a condition to the dismissal the payment of costs and $1,000 as a reasonable attorney's fee. The trial court granted plaintiff's motion to dismiss, and gave defendant judgment for costs, but refused judgment for the $1,000 as attorney's fee. Thereupon defendant filed its memorandum of costs and disbursements, including $1,000 counsel fees. On motion of plaintiff the court struck out the item of counsel fee holding that defendant was not entitled thereto. Defendant appealed.

Edward F. Treadwell, of San Francisco, Cal., P.J Gallagher, of Ontario, and John L. Rand, of Baker, for appellant. Davis & Kester, of Vale, for respondent.

BEAN J.

The question to be reviewed upon this appeal depends upon the construction to be given to section 6868, as amended by the General Laws of Oregon, 1913, p. 81, which is as follows:

"The costs and disbursements of the defendant, including a reasonable attorney's fee to be fixed by the court at the trial, shall be taxed by the clerk and recovered from the corporation, but if it appear that such corporation tendered the defendant before commencing the action an amount equal to or greater than that assessed by the jury, in such case the corporation shall recover its costs and disbursements from the defendant, but the defendant shall not be required to pay the plaintiff's attorney fee."

The construction of this section as to the question involved has not been passed upon by this court. It was attempted to be presented in the case of Portland & O. C. Ry. Co. v Doyle, 86 Or. 206, 167 P. 270, 168 P. 291, but the appeal did not permit the question to be determined. It may be stated as a premise that until plaintiff had actually deposited the money tendered it had the right to abandon the proceeding. O. R. & N. Co. v. Taffe, 67 Or. 102 111, 134 P. 1024, 135 P. 332, 515. That is in effect the present status of this case on the motion for a voluntary nonsuit. The question is, does plaintiff by that motion incur liability under the provision of the statute quoted, for a reasonable attorney's fee to be fixed by the court, or do the mere costs provided for by the statutes generally suffice to appease defendant's demands.

The language of the statute referred to is that the costs and disbursements of the defendant, including a reasonable attorney's fee to be fixed by the court "at the trial," shall be taxed; but to this is attached the proviso that if it appear that plaintiff made a tender before commencing the action equal to or greater than the amount assessed by the jury, the defendant is required to pay the usual costs. Such reasonable attorney's fee is to be fixed by the court "at the trial." A trial is the judicial examination of the issues between the parties whether they be issues of law or fact. See Trial, 2 Bouvier's Law Dictionary. For various purposes, a hearing on a demurrer is a trial, and so is the hearing on the question of attorney's fee, as suggested by counsel; but does the statute mean such a trial, or does it mean a trial of the subject-matter of the action? The subject of the litigation is the damages to the property proposed to be taken. Hearing on demurrer, attorney's fee, motion, or trial is not "the trial" as to the subject of the litigation, but of matters merely incident to and growing out of the litigation of the subject-matter of the action.

When the lawmakers provided that in such a proceeding a reasonable attorney's fee should be fixed by the court "at the trial," it is apparent from the examination of the whole section and of all of the provisions for proceedings in condemnation that they had in mind the main or final trial of the cause. Before the defendant should be allowed such attorney's fee, it must appear that the amount tendered by the plaintiff was less than the amount "assessed by the jury"; and, if the amount tendered is equal to or more than that assessed by the jury "the corporation shall recover its costs and disbursements" from the defendant. Therefore, to determine whether the defendant is entitled to such attorney's fee, it is under the provision of the...