
    Fibbe et al. v. Poland.
    
      Partition—Attorney fees may be allowed where action dismissed by agreement—Section 12050, General Code—Fees of plaintiff’s counsel to be divided among parties, when.
    
    1. Under Section 12050, General Code, in action for partition, court may allow attorney fees commensurate with service actually rendered for common benefit up to time that parties agreed to interest held by each and to dismissal' of action before final judgment of partition.
    2. Where services rendered by attorneys for plaintiff in action for partition were for benefit of all parties, and action was dismissed by agreement at cost of defendant, attorney fees should not be charged only on defendants, but should be divided equally among parties.
    (Decided January 10, 1927.)
    Error: Court of Appeals for Hamilton county.
    
      Mr. Thos. L. Michie, for plaintiffs in error.
    
      Messrs. Pogue, Hoffheimer & Pogue, and Mr. Walter M. Locke, for Hiram C. Bolsinger and John F. Mitchell.
   Buchwalter, P. J.

Lawrence W. Poland, on January 6, 1924, filed an action in the court of common pleas of Hamilton county, Ohio, to partition the real estate left by Henry A. Verhage, deceased. Mary Elizabeth Fibbe and others, who, with the plaintiff, were the sole heirs at law and the owners of the said real estate, were made defendants.

The petition alleged, first, that the plaintiff was seized in fee simple of a one-tenth undivided part of the real estate described in the petition.

The defendants filed a joint answer, denying that the plaintiff: had a one-tenth interest, hut averring that he held a one-twelfth interest in the real estate. Subsequently the plaintiff and defendants agreed that the plaintiff was seized in fee simple of an undivided one-tenth part of said real estate; paid over to him certain moneys due him on account of his distributive share of the income of said estate; agreed that it was not to the interest of the heirs and distributees that said estate should be partitioned by order of court; and requested that the action be dismissed. This agreement to dismiss, etc., was signed by Lawrence W. Poland without the knowledge of the attorneys who had filed the action.

On September 26, 1925, a motion was filed by the defendants, asking that the action be dismissed without prejudice to the rights of the plaintiff, upon payment of costs by the defendants. On the same day Hiram Bolsinger and John P. Mitchell, the attorneys of record for plaintiff, moved for an order fixing attorney fees, to be taxed as a part of the costs in said action. There was a hearing, and the court allowed said attorneys $3,000 for their services, taxed as part of the costs, and made a lien on the said real estate, and the action was dismissed, without prejudice, at the costs of the defendants. The cause was then brought to this court on error.

The only question raised is as to the allowance of the attorney fees. The amount allowed was only a portion of what would have been allowed under the rules of the court of common pleas had the cause proceeded to final judgment of partition. No question is raised as to the amount; the only question being the right of the court to make any allowanee in an action in partition where the cause has been dismissed before final judgment of partition. Section 12050, General Code, which relates to actions in partition, is as follows:

“Having regard to the interest of the parties, the benefit each may derive from a partition, and according to equity, the court shall tax the costs and expenses which accrue in the action, including reasonable counsel fees, which must be paid to plaintiff’s counsel unless the court awards some part thereof to other counsel for service in the case, for the common benefit of all the parties; and execution may issue therefor as in other cases.”

There is nothing in this section which provides that the case must be carried to a conclusion and partition had. The reasonableness of the fee is not here in question.

In the case of Edwards v. Whims, 2 N. P. (N. S.), 464, the first proposition of the syllabus holds:

“In a partition case the right of attorneys to receive fees to be taxed as costs therein is not dependent on final partition being effected in court. Where the parties were unable to agree and suit brought, answer filed, issues of advancements, etc., made, and the case finally adjusted before hearing by amicable partition deeds, it is nevertheless the right of ■ counsel to have taxed as costs in their favor the reasonable value of their services rendered for the common benefit, in the furtherance of the partition.”

Judge Dillon in the opinion (page 467) further says:

“The reason for the allowance of such a fee to counsel is, of course, most apparent, to wit, that although acting for one tenant in common he has performed a benefit which is just as valuable and of as much service to every other tenant in common as to his own client, and therefore his own client should not be put to the burden of paying any more than his proportionate share of such services. The essence of the jurisdiction of the court in such cases lies in the fact that the parties have not made a partition, and, of course, the partition in court presupposes from its very nature that they have been theretofore unable to agree.”

We are of the opinion that the court was fully authorized to make an allowance of fees commensurate with the services actually rendered for the common benefit up to the time that the parties agreed among themselves as to the interest held by each, and agreed to dismiss the action. However, as the service was rendered for the benefit of all, the counsel fees should not be a charge only on the defendants, but should be divided equally among the parties. With this modification, the judgment will be affirmed.

Judgment modified and affirmed.

Hamilton and Cushing, JJ., concur.  