Dorr v. Dudley

Deemer, J. The appeal challenges the ruling of the trial court taxing part of the costs to plaintiff and the finding of the referee and of the court that defendants were’ entitled to compensation for services rendered prior to January 24, 1898, and particularly for services rendered by defendants upon the appeal to this court of a case entitled Door v. Alford, 111 Iowa, 278. The proposition as to costs we shall dispose of after settling the other matters involved. 1. Attorney and client: liability for services. There is no doubt that defendants rendered the services for which they made charges and which the referee allowed-; but plaintiff contends that these services were not Tendered for him but in one case for an attorney already employed by him, and in the case upon [22] appeal at the request of and for the benefit of other parties. We shall take the report of the referee as the basis for bur conclusions, as it had the force and effect of the verdict of a jury and has sufficient testimony in its support; — dealing, of course, only with those items in dispute. It seems that plaintiff held or was interested in a large mortgage; the indebtedness being also secured by what is known as “ time share contract.” A Mr. Powell was employed to foreclose the mortgage, but not 'the time share contracts. When the time came for enforcing these time share contracts, Mr. Powell employed defendants to assist him therein, without any specific agreement with his client or with defendants as to compensation. Plaintiff was informed of this employment of defendants, expressed his satisfaction therewith, verified pleadings drawn by defendants as his attorneys, and accepted the results thereof without objection or protest. It may be that plaintiff understood that Powell was to do this work for a certain agreed compensation, but the referee expressly found that there was no such agreement, and he also found that plaintiff had knowledge of and accepted defendant’s services. The case in this respect is clearly ruled by McCrary v. Ruddick, 33 Iowa, 521, and Hudspeth v. Yetzer, 78 Iowa, 11. The case differs very materially from Ennis v. Hultz, 46 Iowa, 76, relied upon by appellant, in that there was a special contract with the original attorney there, and the client had no information that the attorney had done more than taken a brother attorney into the case with him as an employe of the original attorney. The Ennis case in itself points out the distinction between the two eases, and the two cases are reviewed in Hudspeth’s case, supra. 2. Same. II. As to services in the case upon appeal. The arrangement for the appeal was made by plaintiff’s sons. He (plaintiff) was almost immediately notified thereof, and plaintiff co-operated in the work upon the apt . » t . » peal, giving directions with reference thereto, and with knowledge accepting the benefits of the work done [23] upon tlie appeal. The appeal was successful and plaintiff accepted the benefits thereof. Surely defendants were entitled to compensation for services rendered in the case. Lull v. Bank, 110 Iowa, 537; Eadie v. Ashbaugh, 44 Iowa, 519. 3. Apportionment of costs. III. The trial court taxed all costs made after the filing of defendants’ answer and counterclaim to plaintiff, although he recovered judgment as above stated. Defendants contend that as there was no issue upon plaintiff’s cause of action, and nothing in dispute save as to the counterclaim interposed by them, and, as they were successful in establishing almost every item of the counterclaim, they' were entitled to have the costs taxed to plaintiff and appellant herein. We are of the opinion that as defendants’ account was made up of several distinct and separate items, upon most of which defendants were successful, the case was one for the apportionment of costs. And our conclusion upon the whole matter is that plaintiff should have been ordered to pay four-fifths and defendants one-fifth of the costs of the trial, and as to the costs in this court the order will be the same. With this modification, the judgment will be affirmed. Bishop, J., taking no part.