Wormely v. Mason City & Ft. D.R. Co.

• Citation: 95 N.W. 203,120 Iowa 684
• Parties: HENRY WORMELY, Appellee, v. THE MASON CITY & FORT DODGE RAILWAY COMPANY, Appellant
• Decision Date: 26 May 1903
• Court: Iowa Supreme Court

95 N.W. 203

120 Iowa 684

HENRY WORMELY, Appellee, v. THE MASON CITY & FORT DODGE RAILWAY COMPANY, Appellant

Supreme Court of Iowa, Des Moines

May 26, 1903

Appeal from Wright District Court.--HON. W. S. KENYON, Judge.

APPEAL from an order taxing an attorney's fee for plaintiff's attorney in a condemnation proceeding, and form an order apportioning said fee.

Reversed.

Healy Bros. & Kelleher and B. P. Birdsall for appellant.

Nagle & Nagle for appellee.

OPINION

DEEMER, J--

The defendant company condemned a right of way across plaintiff's land. The sheriff's jury having awarded damages in the sum of $ 1,450, the company appealed, and upon a trial in the district court the amount of the award was reduced to $ 800. After the return of the verdict, the plaintiff filed a motion to tax an attorney's fee for his attorney, and to make an equitable apportionment of the costs on appeal. This motion was sustained, and as a part of the costs an attorney's fee of $ 100 for plaintiff's attorney was taxed, and each party was required to pay one-half the costs of the appeal, including the attorney's fee. The appeal is from this order.

Code section 2007, provides that "the corporation shall pay all the costs of the assessment made by the commissioners and those occasioned by the appeal, including a reasonable attorney's fee to be taxed by the court, unless on the trial thereof the same or a less amount of damages is awarded than was allowed by the commissioners." As a general rule, attorney's fees are not awarded either as damages or as a part of the costs of a proceeding in court. In exceptional cases they have been awarded as damages, but such cases are wholly exceptional, and have no application to the question now before us. When taxed as costs, it is by reason of some special statutory provision. In order that they may be so taxed, the case must come clearly within the terms of the statute. But for the provision of section 2007, before quoted, attorney's fees on appeal in a condemnation proceeding could not be taxed; hence we must look to the terms of that statute to determine whether or not the fee allowed in this case should have been taxed. In this respect attorney's fees differ from the ordinary taxable costs. These are not taxed under this statute, but by reason of the general provisions of the Code relating to costs. Turning, then, to this statute, we find that the fee is for services rendered on the appeal, and not for an appearance or other employment connected with the proceedings before the commissioners. They are then to be taxed by the court for services rendered on the appeal, but such allowance is plainly conditional on an award of damages equal to the amount allowed by the commissioners. The statute reads, "including a reasonable attorney's fee to be taxed by the court, unless on the trial thereof the same or a less amount of damage is awarded than was allowed by the commissioners." The statute has a double aspect. It relates not only to the taxation of a fee provided by the statute itself, but also to other costs which are taxed under general statutes relating to such matters. Going to this statute for the source of authority to tax attorney's fees, and finding a limitation upon that right, this limitation cannot be disregarded. It is clear, therefore, we think, that attorney's fees are not to be taxed, unless on the trial the award is at least equal to that allowed by the commissioners. The order for apportionment, whereby defendant was adjudged to pay one half of this fee, and judgment was rendered against plaintiff for the other half found in favor of his own attorney, is a matter, perhaps, of which the defendant should not be heard to complain, in the event it were found that such fee should be taxed and allowed, yet the effect of such an order may be considered in determining the proper construction to be placed upon the statute. We have already held that, notwithstanding the wording...