Weltner v. Thurmond

• Court: United States State Supreme Court of Wyoming
• Writing for the Court: POTTER, CHIEF JUSTICE.
• Citation: 98 P. 601,17 Wyo. 310
• Decision Date: 24 December 1908
• Parties: WELTNER ET AL. v. THURMOND ET AL

98 P. 601

17 Wyo. 310

WELTNER ET AL.
v.
THURMOND ET AL

Supreme Court of Wyoming

December 24, 1908

Rehearing Denied March 10, 1909, Reported at: 17 Wyo. 310 at 318.

ERROR to the District Court, Sheridan County, HON. DAVID H. CRAIG, Judge.

In an action brought by John D. Thurmond against John C. Weltner and Frederick H. Weltner a special master commissioner was appointed to take the evidence and report conclusions of fact and law. From an order entered in the cause fixing the commissioner's compensation the defendants prosecuted error. The facts are stated in the opinion.

Judgment affirmed.

Stotts & Blume, for plaintiffs in error.

Our contention is that the compensation of the special master is governed by Section 4541, and that any higher allowance or contract therefor is contrary to public policy and void, for the reason that such compensation cannot exceed the amount allowed by law. (15 Ency. Law, 964; 16 Cyc., 432; Ryce v. Osage, 87 Ia. 558; Gilmore v. Lewis, 12 O. 281; Schnadt v. Davis, (Ill.) 57 N.E. 652; Roby v. Chicago &c. Co., (Ill.) 62 N.E. 544; Bank v. Tamajo, 77 N.Y. 475.) The compensation allowed was excessive. It should in no event be higher than the amounts allowed to judges. (In re. Holdrom, (Mont.) 25 P. 438; Middleton v. Bankers &c. Co., 32 F. 524; Engine Co. v. Potter, (Ill.) 71 N.E. 939.) The order allowing the compensation is appealable. A similar order is one for the payment of costs before judgment, and that is held to be appealable. (Cleveland v. Burnham, 60 Wis. 16; Sutton v. Wegner, 72 Wis 294; Sanborn v. Perry, 86 Wis. 361.) Also an order confirming refusal of clerk to tax costs. (State v. Reesa, 57 Wis. 422.) An order allowing compensation of a receiver or other officer, and ordering payment of money. (Grant v. Los Angeles, 116 Cal. 71; Grant v. Court, 106 Cal. 324; Ogden v. Bear Lake, 18 Utah 279; Bank v. Bank, 103 Wis. 39; Bank v. Bank, 127 N.C. 432; In re. R. R. Co., 124 F. 727; Stillman v. Hart, 126 F. 359; In re. Currier Est. (Colo.) 74 P. 340; Boyd Co. v Arthur, (Ky.) 82 S.W. 613; Strull v. R. R. Co., (Ky.) 76 S.W. 181; In re. Sullivan Est., (Wash.) 78 P. 945; Cobb v. Rhea, (N. C.) 49 S.E. 161; Trust Co. v. R. R. Co., (N. Y.) 70 N.E. 925; In re. Lamona Est., 29 Wash. 394; Treadwell v. Treadwell, 134 Cal. 158; Mesnager v. De Leonis, 140 Cal. 402.) The commissioner is properly made a party defendant in error. (Foreman v. Ward, 2 Kan.App. 739; Yerkes v. McGuire, 54 Kan. 614.)

Lonabaugh & Wenzell, for defendant in error Thurmond.

The order allowing the compensation is not appealable, being interlocutory only. There is no authority for making the commissioner a party. The evidence clearly shows the reasonableness of the amount allowed. In allowances of this kind courts should neither be extravagant nor niggardly; the allowance should be liberal and will not be disturbed unless it appears that it is grossly extravagant.

E. E. Enterline, one of the defendants in error, appearing in person.

The commissioner is not a proper party to the proceedings in error. The order allowing the compensation was interlocutory and is not appealable. (Fiedeley v. Diserens, 26 O. St. 312; 4 Bull. 294; 12 O. C. C. 19; 8 O. Dec. 22.) In this case there is nothing showing that final judgment has been entered in the cause, and if an interlocutory order fixing the amount is not reviewable then the petition in error should be dismissed. The record in this case is incomplete for the failure to bring into it the pleadings, evidence and the findings reported by the special master, and it appears from the bill of exceptions that the compensation was fixed upon consideration by the court of the stipulation between the parties, the pleadings in the case, the evidence, and the opinion and findings of the commissioner.

Section 4541, Revised Statutes 1899, has no application to the compensation of a special master. That section refers to fees of district court commissioners and does not cover even as to that officer the report of conclusions of fact and law. In view of the fact that the statute does not prescribe the compensation no good reason exists why the parties may not stipulate for the fixing of the compensation by the trial judge. The allowance was not excessive. The standard of judicial salaries is not necessarily to be followed in fixing a commissioner's compensation. (Finance Com. v. Warren, 82 F. 525.) It would not seem a just rule to require a commissioner's compensation to be allowed according to some fixed standard, but in every case it ought to depend upon the nature of the litigation, and the amount of labor to be performed. (16 Cyc. 433.)

POTTER, CHIEF JUSTICE. BEARD, J., concurs. SCOTT, J., did not sit.

OPINION

[17 Wyo. 313] POTTER, CHIEF JUSTICE.

This is a proceeding in error for the reversal of an order allowing compensation to the defendant in error, E. E. Enterline, as special master commissioner appointed to take the evidence and report conclusions of fact and law in a cause wherein the defendant in error, John D. Thurmond, was plaintiff, and the plaintiffs in error were defendants. The main cause is also here on error and is this day decided. (Weltner et al. v. Thurmond.)

The action in which the order complained of was made was brought by Thurmond upon a contract between the parties by which, in consideration of a deed executed on the same date by Thurmond to J. C. and F. H. Weltner, conveying certain described lands in payment of two mortgages upon said premises, it was agreed that "in case said property sells for more than enough to pay off the claim of" the grantees, including principal, interest, insurance, taxes and other legal and legitimate expenses, then all sums of money in excess thereof shall be paid to the grantor. The contract is set out in full in the opinion in the main case.

The plaintiff alleged that the...