Hemingray vs. Hemingray

THE

SOUTHWESTERN REPORTER.

VOLUME 96.

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HEMINGRAY v. HEMINGRAY et al.

(Court of Appeals of Kentucky. Oct. 9, 1906.)

PARTITION — ATTORNEY'S FEES — LIABILTY OR PARTIES.

Where certain joint owners of realty, suing for partition, obtained a judgment before the title papers were filed, which did not include all the property, and the other owners, having selected another attorney to represent them, had the judgment set aside and procured another free from error, the owners instituting the suit were not entitled to have the fee of their attorney paid out of the proceeds of the property.

[Ed. Note. — For cases in point, see vol. 38, Cent. Dig. Partition, § 447.]

Appeal from Circuit Court, Kenton County.

"Not to be officially reported."

Action by Robert Hemingray against Ralph C. Hemingray and others. From an order refusing to allow plaintiff's counsel fees, he appeals. Affirmed.

James P. Tarvin, B. A. Frazer, and Thos. H. Towers, for appellant Ernst, Cassatt & McDougal and Green & VanWinkle, for appellees.

HOBSON, C. J. 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 resubmitted, the property sold, and the sale confirmed. With their answer the defendants filed 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 plaintiffs appeal.

The attorneys each filed affidavit 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 first 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 apply 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 cannot be compelled to pay for counsel employed by others when he has himself employed counsel to represent his interest." Bailey v. Barclay, 60 S. W. 377, 22 Ky. Law Rep. 1246; Fristoe v. Gillen, 80 S. W. 826, 26 Ky. Law Rep. 151.

Judgment affirmed.