Muller v. Martin

WOOD (Fred B.), J.

Plaintiff William Muller has appealed from an order in a partition suit which awarded a fee of $250 to the referee who conducted the sale of the property of the parties and $250 to defendant W. Knickerbocker as reasonable counsel fees expended or incurred for the common benefit.

In support of his appeal plaintiff claims (1) the order is not supported by any evidence, (2) the fees allowed were excessive, and (3) a counsel fee should have been awarded to plaintiff.

The record is in an unsatisfactory state. Plaintiff chose to present his appeal wholly on a settled statement. He prepared and filed a proposed statement. Defendant Knickerbocker filed amendments thereto. Plaintiff filed objections to the amendments. The trial court ordered these three and certain other documents engrossed as the Statement on Appeal and certified the statement as true and correct. The conflict between these three documents bears principally upon the oral proceedings at the hearing which resulted in the order appealed from. We have plaintiff’s and defendant’s conflicting accounts of what happened at that hearing but no settlement thereof by the judge who presided at the hearing.

Normally, the failure of the trial court to settle the record properly would require that it be returned to the trial court for settlement. However, it happens that we can use the record in its present state. Careful scrutiny convinces us that even if all differences concerning what happened at the hearing below were resolved in plaintiff’s favor, the order appealed from must be affirmed.

The record, viewed in the light most favorable to the plaintiff, discloses the following facts: W. H. Girvin, sole referee in partition, filed his account showing $2,167.64 as the balance remaining in his hands and petitioned the fixing of a reasonable fee for his services and a reasonable sum for attorney fees. On the hearing of that petition, the referee testified: This is a petition for the attorney’s fee and referee’s

[433]

fee in partition; there was a sale of certain lots for $3,800 and an order confirming the sale of this real estate by the referee in partition; there is in the hands of the referee approximately $2,167 for disposal by the court. The judge was informed that the referee had sold the real property, that the sale thereof had been ordered confirmed, and that the accounting thereof was now before the court. The court’s attention was called to the fact that each of the tenants in common, as shown by the accounting, had received from the referee all of the purchase money paid by them to the County Treasurer of San Mateo County at a tax sale and at a sale on foreclosure of street bonds by which each of the parties acquired title to the lots, plus interest thereon from the dates of purchase to the date of sale by the referee; and that the profit resulting from the sale, subject to the fee for the referee and the defendant’s attorney, was $2,167.64. W. P. Caubu, counsel for defendant Knickerbocker, requested the court to allow him attorney fees and the referee his fees and suggested $250 for each. Plaintiff Muller objected to those amounts, claiming them excessive, aggregating approximately 25 per cent of the net proceeds left after deducting costs, expenses, and initial investments allowed to the parties concerned. The judge indicated approval of the amounts mentioned and disapproval of plaintiff’s objection. Plaintiff then moved the court for an allowance for himself. Plaintiff William Muller was substituted for the original plaintiff Bessie Muller in August, 1950, prior to the trial of the action, and thenceforth acted as his own attorney.