Crutcher v. Sims

FARRINGTON, J.- The plaintiff (appellant) instituted this action in a justice’s court on a promissory note payable to his son, L. A. Crutcher, in the sum of one hundred dollars, with interest at eight per cent per annum from date, dated October 19, 1906, and signed by the defendant (respondent). The case reached the circuit court on appeal where it was tried anew. Defendant, for answer, admitted that on or about October 19,1906, he borrowed from L. F. Crutcher the sum of one hundred dollars and gave his note therefor payable to L. A. Crutcher, the son of the plaintiff, and that at that time the plaintiff gave him ninety dollars and retained ten dollars for one month’s interest. Fur [490] ther answering, defendant alleged that he has fully paid the note in suit; also, by way of counterclaim, that he has paid to L. P. Crutcher the sum of one hundred dollars, as usurious interest, over and above the legal rate of eight per cent on the sum of money borrowed, and asks judgment for one hundred dollars and a reasonable attorney’s fee. The issue was sharply drawn in the circuit court as to the payment of this note. The defendant, on whom the burden of proof was cast, testified that he never at any time borrowed more than one hundred dollars from L. P. Crutcher, receiving on that loan only ninety dollars, and that he never borrowed or received any sum of money from L. A. Crutcher; that from time to time he. was required by the plaintiff to sign renewal notes, and that when he made a renewal note the plaintiff told him the original note was down at his home and that he would mark it paid and deliver it to him. In corroboration, defendant proved by his brother, who was at that time sheriff of Greene county, that there was a balance paid on a note of some eighty dollars which paid the note in full. Plaintiff admits having received this money from defendant’s brother but contends that that was a payment on a different note and transaction. The plaintiff’s testimony is that there was some three hundred or four hundred dollars loaned to the defendant and notes taken for the various amounts at the different times, and he is corroborated somewhat by his son’s testimony. The questions as to whether this note in suit was paid and as to whether (on defendant’s counterclaim) usury was collected were purely questions of fact and were determined by the judgment of the trial court sitting as a jury in favor’ of the defendant as to the note and for nine dollars and seventy-five cents usurious interest collected. Although there appears in the motion for .a new trial an assignment to the ef [491] feet that there was no evidence of probative force showing that usury had been collected, the evidence offered by the defendant was competent, and if believed. (and it was believed) by the trial court, that settled that question so far as this court is concerned. The second and only point relied upon by appellant for reversal on which authorities are cited is that the court acting under section 7182, Revised Statutes 1909, assessed an attorney’s fee of twenty-five dollars against plaintiff. It is insisted that the record fails to show any evidence at the trial relative to the value of the services rendered by defendant’s attorney. There is no complaint that the amount fixed was in any way unreasonable; nor is it disputed by appellant that the trial court may assess attorneys’ fees under the statute mentioned. The only contention is that the court did not have any evidence whatever before it from which to determine the amount to be allowed. That evidence as to what is a reasonable attorney’s fee in a particular case is merely advisory to either judge or jury cannot be questioned. [See, Cosgrove v. Leonard, 134 Mo. 1. c. 425, 33 S. W. 777, 25 S. W. 1137, and cases cited.] It is true, the trier of that issue must have before it in some form the general nature and extent of the services actually rendered. In this case, the circuit judge who had tried the usury case had before him the pleadings drawn by the attorney for the defendant, and knew from the records of his court of the trial in the justice’s court, and had personally witnessed the defendant’s attorney conducting the trial before him. Hence it cannot be said that there was no evidence upon which to base the allowance of an attorney’s fee. If the trial judge had proceeded as appellant’s counsel insist he should, attorneys would have been called as witnesses and asked what in their opinion the services rendered were rea-, sonably worth — all of which the trial judge in this [492] case knew already. Their testimony would have been only advisory to him in fixing the amount. We must deny that reversible error was committed, under the circumstances, in allowing an attorney’s fee for services in the absence of expert testimony as to the reasonable value of those services. There is no doubt in our minds that a judge who is experienced and is himself in a sense an expert on the value of legal services can from his own knowledge of a case tried before him fix the amount of a fee to be allowed to an attorney in the case without any advisory testimony as to their value. It was held in the case of Colley v. Wolcott, 187 Fed. 595, that a court may properly make an allowance of fees for solicitors for services rendered before it upon its own knowledge as to the extent and value of such services. The same decision was reached in the case of Larscheid v. Kittell, 142 Wis. 172, 125 N. W. 442, 20 Ann. Cas. 576, in which a number of authorities are cited to the effect that the judge before whom a proceeding has been pending may very properly, in the absence of any additional testimony of the value of services of attorneys in the ease, make an allowance of an attorney’s fee. [See, also, 2 Ruling Case Law, sec. 145, page 1059.] The judgment is affirmed. Robertson, P. J., and Sturgis, J., concur.