Winslow Gas Co. v. Plost
| Decision Date | 25 March 1919 |
| Docket Number | No. 9745.,9745. |
| Parties | WINSLOW GAS CO. et al. v. PLOST. |
| Court | Indiana Appellate Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Pike County; John L. Bretz, Judge.
Action by Paul Plost against the Winslow Gas Company and another. From a judgment for plaintiff, defendants appeal. Affirmed conditionally, upon plaintiff's entering remittitur; otherwise reversed, with instructions to sustain defendants' motion for new trial.
Frank Ely, of Petersburg, and Charles F. Remy and James M. Berryhill, both of Indianapolis, for appellants.
John M. Vandeveer, of Oakland City, and John K. Chappell, of Petersburg, for appellee.
This is an action by appellee against appellants, the Winslow Gas Company and the Fortville Gas Company, to foreclose a mechanic's lien for services rendered by appellee in cleaning out and plugging a natural gas well. The complaint is in a single paragraph, to which appellants filed an answer in general denial. The appellant Fortville Gas Company also filed a counterclaim for damages to the well. alleging that it was the owner thereof, and that appellee was employed to clean the same and plug the water therefrom; that he performed said work so negligently and unskillfully that the well, which was worth more than $1,000 prior thereto, was rendered of no value. On the trial of the cause a special finding of facts was requested and made, and conclusions of law stated thereon, on which judgment was rendered against both appellants for $769, which included an attorney's fee of $75. A decree was entered, foreclosing appellee's lien, and ordering a sale of the leasehold in question in satisfaction of his judgment. Appellants filed a motion for a new trial, which was overruled, and have assigned, as one of the errors on which they rely, that the court erred in overruling said motion.
Appellants state in their brief that the only questions involved in this appeal are based on the sufficiency of the evidence to sustain the special finding of facts. We will therefore confine our consideration to such questions in that regard as are presented by appellants in their propositions or points. The question on which appellants lay the greatest stress relates to that part of the finding in which it is found that there is due appellee the sum of $75 as an attorney's fee. Appellants contend that there is no evidence to sustain that part of said the finding. Appellee concedes that there is no direct evidence in that regard, and has failed to cite any indirect evidence that would sustain such a finding. As our investigation has failed to disclose any such evidence, we will assume that none was introduced. The question then arises as to whether, in the foreclosure of a mechanic's lien, the court can include in the judgment rendered an amount for an attorney's fee, where there has been no proof in that regard. The statute providing for attorney's fees in such actions is as follows:
“In all suits brought for the enforcement of any lien under the provisions of this act, if the plaintiff or lienholder shall recover judgment in any sum, he shall also be entitled to recover reasonable attorney's fees, which shall be entered by the court trying the same, as a part of the judgment in said suit.” Section 8307, Burns' 1914.
[1][2][3][4] Appellee contends that under this statute the court is authorized, without proof, to include a reasonable attorney's fee in any judgment rendered in the foreclosure of a mechanic's lien, as a matter of judicial knowledge. We cannot concur in this contention. It has been expressly held that a court cannot take judicial notice of what is a reasonable attorney's fee. Wyant v. Pottorff (1871) 37 Ind. 512;Morris v. German (1875) 14 Kan. 221. Other decisions of this state impliedly so decide, by holding that the amount of such a fee is a matter of proof. Bowser v. Palmer (1870) 33 Ind. 124;Smiley v. Meir (1874) 47 Ind. 559;Lindley v. Sullivan (1892) 133 Ind. 588, 32 N. E. 738, 33 N. E. 361. It is well settled that an agreement in a promissory note to pay an attorney's fee is a contract of indemnity only, and that under such an agreement the holder of such note can only recover such a sum as he has actually expended or become liable for in the collection of such note. Kennedy v. Richardson (1880) 70 Ind. 524;Moore v. Staser (1892) 6 Ind. App. 364, 32 N. E. 563, 33 N. E. 665;Shoup v. Snepp (1898) 22 Ind. App. 30, 53 N. E. 189.
The statute quoted supra was evidently enacted for the same purpose, and not for the purpose of providing an arbitrary penalty to be imposed by the court in such an amount as it might determine without evidence. It is a matter of common knowledge that the amount of a reasonable attorney's fee, as provided by the statute in question, depends upon a number of circumstances, such as the amount in controversy, the number and seriousness of the questions involved, the difficulties encountered in prosecuting the action, as well as the time and labor employed. All of these things do not necessarily come before the court, or within its knowledge, and it would be manifestly improper to ask the court to determine reasonable compensation therefor, without being...
To continue reading
Request your trial