Opinion
October 11, 1929.
October 30, 1929.
Partition proceeding — Costs — Counsel fees — Allowance of — Act of June 7, 1917, P.L. 337, Section 35a.
In an appeal from an Auditor's Report disallowing counsel fees as costs in a partition proceeding, under the Act of June 7, 1917, P.L. 337, Section 35a, the record disclosed that the original petitioner in the partition suit had failed to carry the proceeding to a conclusion, and that the exceptant, a respondent in the former proceeding, pressed the matter to a final decision. The counsel fees of the original petitioner were allowed and taxed as part of the costs, but the exceptant's counsel fees were disallowed. In such case the decree of the Court dismissing the exceptions to the Auditor's report will be affirmed.
The right to tax costs in a partition proceeding is derived from statutory authority. The petitioner alone is entitled, under the Partition Act, to an allowance for counsel fees, and there is no authority for the taxation of additional counsel fees of a respondent who actively pressed the suit to a final conclusion.
Appeal No. 128, October T., 1929, by exceptant from decree of Orphans' Court, Philadelphia County, January T., 1916, No. 25, in the Estate of Henry K. Cooper, Deceased.
Before PORTER, P.J., TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Exceptions to auditor's report disallowing counsel fees in a partition proceeding. Before STEARNE, J.
The facts are stated in the following opinion of the court below:
The question before us is whether counsel fees paid in a partition proceeding to an attorney, other than counsel for petitioner, may be taxed as part of the costs. Exceptant, a respondent, after the proceedings were allowed to lie in abeyance for a considerable time, became active and pressed the matter to a final conclusion. He contends that upon the inactivity procrastination, and virtual abandonment of the proceedings by the original petitioner, he himself became the real and effective petitioner within the meaning and intent of the Partition Acts, because of his diligence in expediting and concluding the cause.
It is to be noted, however, that the petitioner already presented his claim for counsel fees, which was allowed and taxed as part of the costs. To tax an additional counsel fee, as part of the costs, to another party in the proceeding, requires legislative authority or judicial sanction.
The Partition Act of April 27, 1861, P.L. 461, Section 1, re-enacted by the Orphans' Court Partition Act of June 7, 1917, P.L. 337, Section 35 (a) provides:
"The costs ...... with a reasonable allowance to the ..... petitioners for counsel fees to be taxed by the court, or under its direction, shall be paid by all parties in proportion to their several interests.
It is to be noted that such counsel fees are to be considered costs in the proceeding. Such counsel fees are not such as are allowed in settlement of estates, etc., under broad equitable principles. Their source is derived from statutory enactment. It has always been considered (Grubb's Estate, 82 Pa. 23, page 29) that the services for the performance of which the statute was made to provide were searches, formal motions, the preparation of papers and conveyancing — in a word, for such professional duties as will probably enter into the bill of costs of an attorney under the English practice. (See Kujack's Estate, 4 Pa. D. C. 414). Statutes relating to costs are strictly construed. Hoover v. Sch'l Dist., 4 Pa. C.C. Rep. 520; In re Braintrim Sch'l Dist., 23 Pa. C.C. Rep. 510; Arnold v. McKelvey, 26 Pa. Dist. Rep. 717; Stewart v. Baldwin, 1 Penrose Watts 461; Stillwell v. Smith, 17 Pa. Dist. Rep. 502; Lewis v. England, 4 Binney 13. To recover costs requires a statute specifically granting such right. In re Beassler, 6 Pa. Dist. Rep. 656; Caldwell v. Miller, 46 Pa. 233; Heath v. Walton, 9 Pa. Dist. Rep. 218; Hoedt v. Hoedt, 60 Pa. Super. 5.
Counsel fees in partition are allowed as part of the costs: Building Association v. Bank, 142 Pa. 121; Snyder's Appeal, 54 Pa. 67; Kujack's Estate, supra.
It has always been considered that it is the petitioner, and the petitioner alone, who is entitled to an allowance of such counsel fees; Campbell's Estate, 13 Weekly Notes of Cases 144; Bile's Appeal, 119 Pa. 105. It has been held that the court has no authority to making allowance for fees for counsel employed by any of the respondents: Kulp's Estate, 26 Weekly Notes of Cases 78; Campbell's Estate, supra.
This rule prevails though the respondent actually favored the partition and aided in the proceeding: Biles' Appeal, supra; Campbell's Estate, supra; Williams' Estate, 14 Pittsburgh Law Journal 311; Hummel's Appeal, 2 Cent. Rep. 346; Trickett on Partition, (Ed. 1900), p. 223; Carey's Estate, 10 Kulp 227.
Upon broad equitable grounds it seems a hardship to deny counsel fees to a respondent who actively pressed the partition suit to a final conclusion. Unfortunately for exceptant, however, his claim is not based on equitable principles, but upon the provisions of the Act of Assembly. We are of opinion that because the exceptant's status is not within the provisions of the Act of Assembly, the ruling of the auditing judge was clearly correct, and, accordingly the exceptions are dismissed.
The court dismissed the exceptions. Exceptant appealed.
Error assigned, among others, was the decree of the court.
E. Spencer Miller, for appellant.
Horace M. Rumsey, and with him Clinton A. Sowers, Herbert L. Maris and John T. Murphy, Jr., for appellees.
Argued October 11, 1929.
The judgment is affirmed on the opinion of Judge STEARNE of the orphans' court of Philadelphia County.