Watson v. Sutro

Garoutte, J. This is an appeal by Adolph Sutro from that portion of a judgment in partition proceedings that awards to the plaintiff in the action. an attorney’s fee of $5,000. In the trial of the action of partition the amount of the respective equitable interests of plaintiff and appellant Sutro to the realty involved in the litigation was warmly contested, and as to such matters the litigation resulted adversely to this appellant. At the hearing, the report of the referees was acquiesced in by all the parties in interest, and the only contest that was made was as to the amount which should be allowed to plaintiff under section 796 of the Code of Civil Procedure for reasonable counsel fees expended by him for the common benefit. The court, after hearing the testimony of nineteen witnesses, fixed the fee at $5,000, and determined that defendant Sutro’s proportion was $4,828.25; and the propriety of this order is the sole question involved in this appeal. Section 796 of the Code of Civil Procedure provides that: “The costs of partition, including reasonable counsel fees expended by the plaintiff, or either of the defendants, for the common [171] benefit, fees of referees, and other disbursements, must be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein.....When, however, litigation arises between some of the parties only, the court may require the expenses of such litigation to be paid by the parties thereto, or any of them.” The fees of the referees, and all other costs in the case, except the counsel fee of plaintiff, have been adjudged without dispute to be paid in proportion to the several interests of the parties. There is a sharp conflict in the evidence as to what would be a reasonable attorney’s fee for the labor performed, and. under these circumstances we will not disturb the judgment. The amount of the attorney’s fee was a question of fact, essentially within the province of the trial court to determine from the evidence, and to disturb the trial court’s finding in this regard, where, as in this case, there is a substantial conflict in the evidence, would be a trespass upon well-settled principles long recognized by this court. Thomas P. Stoney, attorney for plaintiff, stated in detail the character and amount of the services he had performed as attorney for plaintiff in the action, and he further testified that such services were reasonably worth $10,000; and this testimony was corroborated by various other eminent members of the bar as to the value of the services rendered. We think this evidence is amply sufficient to support the judgment. While it is true the witness Stoney did not segregate the value of the services rendered by his firm in furtherance of the personal interests of his client in contesting the claim of title from the value of the services rendered for the common good in the matter of the partition proceedings proper, still the amount and character of labor performed fbr .the common benefit was -in evidence before the court, and upon that evidence alone, without the advice of experts, the court had the power to fix the amount of the fee, and we are not prepared to say from the record before us that the amount awarded is too large. It was said in [172] Pennie v. Roach, 94 Cal. 520: “It is true three witnesses for the plaintiff, equally eminent in the profession, testified that his services were worth only $75,000; but it was for the court to decide the conflict, and in such cases its ruling will not be interfered with by the appellate court unless there is a clear abuse of discretion.” (Citing Stuart v. Boulware, 133 U. S. 78.) We see no abuse of the court’s discretion in this case. For the foregoing reasons it is ordered that the judgment be affirmed. Van Fleet, J., concurred.