Weltner v. Thurmond
| Decision Date | 24 December 1908 |
| Parties | WELTNER ET AL. v. THURMOND ET AL |
| Court | Wyoming Supreme Court |
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. .) 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.)
SCOTT, J., did not sit.
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 deed was executed to secure the indebtedness and in trust to sell the premises and apply the proceeds as agreed in the contract, and we have decided that the property was conveyed in trust for the purpose stated in the contract and have upheld the right of the plaintiff below to have the trust enforced, the defendants having refused to comply with the agreement and repudiated the trust. The defendants claimed that they received an absolute title and that the plaintiff had no further interest in the land or proceeds. The suit involved property of the value of $ 36,000, against which the defendants were found and adjudged to have a claim of less than $ 6,000. The evidence was taken before the special master, which he reported to the court together with his conclusions of fact and law and the conclusions were approved and judgment rendered accordingly.
The appointment of the special master commissioner was made pursuant to an agreement of the parties and they stipulated in writing that the compensation for the master's services shall be such as may be fixed by the presiding judge of the court; that such compensation shall be paid at such time by the parties as may be fixed by an order made and entered by the said judge either within or without the district; that such order may be made immediately after the special master commissioner makes his report and findings, or at any time thereafter, and that such compensation shall be ultimately taxed as costs in accordance with the statute, and in accordance with the final judgment rendered in the case. The part of the stipulation allowing the order to be made without the district is explained by the fact that the judge of a different district was called in to hear and decide the cause. It appears that the taking of the evidence occupied two days, that it was taken by a stenographer and afterwards extended whereupon written briefs were submitted to the special master. That within two weeks thereafter the report of the evidence and the findings of fact and law were filed. Upon considering the questions and the amount involved in the case the presiding judge made and entered an order allowing the sum of $ 500 as the compensation for the special master commissioner.
The defendants, plaintiffs in error here, thereupon filed a motion to set aside, vacate and modify said order upon the ground generally that the compensation allowed is illegal and excessive. It is contended that the statute fixes the compensation and that, therefore, the stipulation was void. Evidence was offered on behalf of each party in the form of affidavits of attorneys practicing in the district where the cause was pending as to the reasonableness of the compensation allowed, counsel for defendants being the only ones deposing that the amount allowed is unreasonable or excessive, while seven others say by their several affidavits that it is reasonable and not excessive. The motion to vacate the order was overruled.
It is contended on behalf of defendants in error that the order fixing and requiring the payment of the compensation is not appealable, and that the special master commissioner is not a proper party. Without deciding or considering either of those questions we have concluded to determine the case upon the merits, for we are convinced that the objections to the order are not well taken. The statute provides that a master commissioner, or special master commissioner, shall be allowed such fees as are allowed for similar services to other officers. (Rev. Stat. 1899, Sec. 3679.) The only other officers referred to in the statutes as liable to be called upon to perform duties similar to those performed by the special master in this case are district...
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