Hemingray vs. Hemingray

COURT OF APPEALS OF KENTUCKY.

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HEMINGRAY V. HEMINGRAY, & C.

HEMINGRAY v. HEMINGRAY, &c.

(Filed October 9, 1906—Not to be reported.)

1. Attorneys’ fees — This was an action by the owners of two-fifteenths of an estate. The action had not been properly brought. The owners of thirteen-fifteenths employed an attorney to have the judgment set aside, which was done, and other property included, title papers filed and other essential things. Held — That the owners of the thirteen-fifteenths are not required to pay the attorneys’ fees of the owners of the two-fifteenths of the estate.

2. Same — One jointly interested can not be compelled to pay for counsel employed by others when he has himself employed counsel to represent his interests. (22 Ky. Law Rep., 1246; 26 Ky. Law Rep., 151.)

James P. Tarvin, B. A. Frazer and Thos. H. Towers for appelant.

Ernst, Cassatt & McDougal and Greene & Van Winkle for appelees.

Appeal from Kenton Circuit Court.

Opinion of the court by Chief Justice Hobson. affirming.

Appellants instituted this action to have certain real property sold and a division of the proceeds, making the other joint owners defendants to the action. Appellants owned two-fifteenths of the property; the defendants owned thirteen-fifteenths. No answer having been filed for the defendants a judgment was entered for the sale of the property as prayed in the petition. A week later this judgment was set aside. The defendants, by their attorney, filed answer. The case was re-submitted; the property sold and the sale confirmed. With their answer the defendants flied the title papers which had not theretofore been filed in the action. They also brought in two lots which had been omitted from the petition. After the sale was confirmed the plaintiffs moved the court to allow them a counsel fee of $500, to be paid out of the entire fund. To this the defendants objected as they had been represented by attorneys of their own employment. The circuit court refused to make the allowance, and the plaintiff appeals.

The attorneys each filed aflidavit as to the cause for setting aside the judgment which was first entered, but as there was only one witness on a side we do not deem it proper to disturb the chancellor's conclusion on the facts. The case in substance comes to this; the owners of two-fifteenths of the property brought a suit by their attorney to have the property sold and the proceeds divided. Judgment was entered in the case which did not include all the property and the title papers had not been filed. The owners of thirteen-fifteenths of the property not desiring to employ the attorney whom the plaintiff had selected employed another to represent them in the action. He did represent them. Finding that the judgment was erroneous he had it set aside and procured a judgment to be entered that was free from error. The owners of thirteen-fifteenths of the property had a right to select their own attorney to look after their interests and see that a sale of the property was ordered, which was free from error and would not involve them in any litigation. They were interested in having the property so ordered sold that prospective buyers would have no doubt of the title and so would feel free to bid. To this end they had the right to employ counsel of their own choice; and when they are liable to their own attorney for his fee they should not be required to contribute to the payment of the fee of an attorney whom they did not employ and may have been unwilling to employ. In such a case a litigant is not placed in the dilemma of having to trust his interests to an attorney selected by another or bear the burden of paying two attorneys. One of the parties secures no advantage over the others by being ahead of them in instituting the proceeding. It is not a question of diligence in suing. When the defendant has employed counsel of his own to represent him in the action, as he has a right to do, and is represented by such counsel, he should not be made to contribute anything to pay the fee of the attorney of the party who brings the suit.

In Thirlwell v. Campbell, 74 Ky., 168, this court held that under the statute the party who was flrst to commence an action was not entitled to have his counsel fees paid out of the common fund when he was the only one who desired the services of the attorney he employed and the other parties were in fact represented by attorneys of their own choosing.

“The statute is only intended to appeal to that class of cases where the parties have a common interest and a part without objection from the others, prosecute suits for their joint benefit; and only to such parties as are not represented in the case by attorneys selected by themselves. One jointly interested can not be compelled to pay for counsel employed by others, when he has himself employed counsel to represent his interest." (Bailey v. Barclay, 22 Ky. Law Rep., 1246; Fristoe v. Gillen, 26 Ky. Law Rep., 151)

Judgment afiirmed.

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