Lewis v. Crawford

Kirby, J. The only question presented by this appeal is whether or not, in a suit for the partition of lands, it is proper for the court to allow the solicitor of the plaintiff a fee for his services and tax the same as costs against all the parties to the action. The question was answered in the negative in Gardner v. McAuley, 105 Ark. 439, 151 S. W. 997, since which time it is insisted that the rule has been changed by statute, act 386 of the Acts of the General Assembly, session 1921, which provides: “Section 1. That hereafter in all suits in any of the courts of this State for partition of land, when a judgment is rendered for partition, it shall be lawful for the court rendering such judgment or decree to allow a reasonable fee to the áttorneys bringing such suit, which attorney’s fee shall be taxed as part of the cost in said cause, and shall be paid pro rata as the other costs are paid according to the respective interests of the parties to said suit in said lands so partitioned.” This statute was enacted, doubtless, to change the rule as announced in said case supra, where it was said, quoting from Cowling v. Nelson, 76 Ark. 146, 88 S. W. 913: “The utmost that can be said of the attorney’s fees is that they were part of the costs; and as to whether the court has, in amicable suits, any right to tax them as costs, is a question that the courts are divided upon, but all agree that, in adversary proceedings, they cannot be so taxed. ’ ’ It was also there said that the weight of authority-appeared to he against the taxation of attorney’s fees, even in amicable partition suits, unless the partition resulted solely from the services of the solicitors for one of the parties,- and such services were accepted by the other parties; and “in adversary suits there is no ground for taxing the fees of the solicitor of one of the parties against the other parties, and the doctrine of allowance of attorney’s fees in amicable suits of this character should, we think, be limited to those cases where the services of the plaintiff’s solicitor not only result in benefit to the whole subject-matter of the litigation, but are accepted and acquiesced in by the other parties. The rule does not apply where all of the parties appear by their respective solicitors and the proceedings are conducted through their joint efforts.” Cyc says: “The general principle underlying the statutes authorizing allowances to be made in partition suits for the services of attorneys is that, irrespective of the person in fact employing the attorney, his services were necessary to the conduct of the proceeding and therefore were beneficial- to all the parties; and, so far as they were such, are equitably chargeable against’ all. This is ordinarily true of the services of plaintiff’s attorney, who, in bringing the action and in his antecedent investigations and in every step he takes, unless it be in the trial of contested issues as to title, works for the benefit of all the parties. If a defendant has, or in good faith believes he has, a good and substantial defense to the action, and employs an attorney to present it, such defendant is not answerable for any part of the fees of complainant’s attorney.” 30 Cyc, page 299. The language of the act is broad and comprehensive, providing that in all suits in any of the courts of the State for partition, or where a judgment is rendered for partition, “it shall be lawful for the court rendering such judgment or decree to allow a reasonable fee to the attorneys bringing such suit, which attorney’s fee shall be taxed as part of the cost in said canse, and shall be'paid pro rata as the other costs are paid, according to the respective interests of the parties to said suit in said lands so partitioned.” While this language appears all-inclusive and t*o authorize the court rendering the judgment or decree for partition to make ah allowance of a reasonable fee, to be taxed as part of the costs in all suits for the partition of land, to the attorneys bringing such suit, it is not mandatory, and leaves the court the discretion to determine the cases in which such allowance should properly be made. Certainly it would not be just or equitable to require the appellants, who owned the seven-eighths interest in the land partitioned, who recognized the necessity for employment of, or preferred to be represented by, an attorney of their own selection, in the suit which may be regarded adversary instead of amicable, to pay the fee of plaintiff’s attorney and also their own. It is true the chancellor found that the attorney bringing the suit fully developed all rights and interest of both plaintiffs and defendants, and was in no wise aided or assisted by the defendants or their counsel in protecting and ascertaining the rights of all parties, plaintiffs and defendants, but appellants evidently believed it necessary to do so, and had the right to employ an attorney of their selection to represent them and protect their rights in the litigation, without being mulcted into the payment of the fee of opposing counsel as costs in the case. We are of opinion that under a proper construction of the act the court was not warranted in requiring the defendants in an adversary proceeding, who were represented by their own counsel, to pay the fee of the attorney bringing the'suit for partition as costs of the litigation on the rendition of judgment for partition. There is no great unanimity of opinion in the courts of other jurisdictions in the construction of statutes of like kind. The following cases are cited in harmony with our holding: Brower v. Rosenbaum Little, 125 Miss. 87, 87 So. 130; Hoffman v. Smith, 61 Miss. 544; Wainscott v. McBroom, 203 Ky. 634, 262 S. W. 961; Seeburger v. Seeburger, 325 Ill. 47, 155 N. E. 763; Jones v. Young, 228 Ill. 374, 81 N. E. 1042;. Hemingray v. Hemingray (Ky.) 96 S. W. 574. It'might not be so in all adversary proceedings for partition, the court having the discretion to determine in which it should be done, but it is only in amicable suits for partition, or when the services of plaintiff’s solicitor result in benefit to the whole subject-matter of the litigation, or is accepted and acquiesced in by the other parties, that the court can, as a, matter of course, tax the reasonable attorney’s fee of the party bringing the suit as costs in the case, to be paid pro rata as the other costs are paid, according to the respective interests of the parties to the suit in the lands partitioned. For the error designated in taxing the fee of the attorney bringing the suit as costs of the case against appellants, the decree is reversed and the cause remanded, with directions to distribute the proceeds of the sale of the partitioned lands according to the interest of the parties without deduction of any part of the attorney’s fee as cost of the litigation, and for'other proceedings in accordance with the principles of equity and not inconsistent with this opinion. Justices Wood, Humphreys and MoHaney dissent.