
    No. 705
    BINZ v. DUSHA et
    No. 19923.
    Supreme Court
    On motion to certify.
    Dock. June 23, 1926;
    4 Abs. 475.
    114. ATTORNEY’S FEES — Where in the settlement of an estate an action to quiet title is filed and prosecuted and the court makes an allowance for attorney fees and the entry is approved and filed, may the Court of Appeals open and vacate after term the judgment and order on the apparent ground that the attorney fees were excessive and order the Common Pleas to fix an amount to be allowed as such fees ?
    Attorneys — J. L. Mantón for Binz; L. P. Smith for Dusha et; both of Toledo.
   This action was filed originally in the Lucas Common Pleas by Charles Binz against Ida Dusha and Louisa Frick in which it was sought to quiet title to effect a partition of the same. The Common Pleas quieted title and granted a partition and upon distribution of the proceeds of the sale of the property, Mantón & Mantón, attorneys for Binz were allowed a fee of $1200. The entry for this allowance was not submitted to opposing counsel ajid was submitted to a judge other than the one who- made the docket entry for approval.

At a subsequent term of court Dusha & Frick filed a motion to modify the decree insofar as the attorney fees were concerned' by virtue of 11634 GC., which motion was overruled.

The Court of Appeals opened the judgment in regard the attorney fees were concerned and directed the Common Pleas to modify the order insofar as it related to the allowance “and fixed the amount to be allowed if any”.

Binz through his attorneys in the Supreme Court contend:

1. That the allowance of attorney fees is a discretionary matter and as such cannot justify the reversal of the order.

2. That the discretionary power of the court to allow fees cannot be interferred with unless this power is abused.

3. That there was no evidence to show an abuse of the court’s discretion.

4. That the fees were reasonable.  