Henn v. Clifford J. Heath, Inc.

Supreme Court of New Jersey

Henn v. Clifford J. Heath, Inc.

141 A. 769, 102 N.J. Eq. 596, 1 Backes 596, 1928 N.J. LEXIS 622

CourtSupreme Court of New Jersey

DecidedMay 14, 1928

StatusPublished

Cited by6 cases

This text of 141 A. 769 (Henn v. Clifford J. Heath, Inc.) is published on Counsel Stack Legal Research, covering Supreme Court of New Jersey primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Henn v. Clifford J. Heath, Inc., 141 A. 769, 102 N.J. Eq. 596, 1 Backes 596, 1928 N.J. LEXIS 622 (N.J. 1928).

Pincite

Opinion

Per Curiam.

The appeal in this case is from the refusal of the chancellor to allow a counsel fee to the complainant’s solicitors in an uncontested foreclosure suit. The complainant, Henn, the present appellant, is a member of the firm of Henn & Burr, who prosecuted the suit, and the allowance of a counsel fee was asked to be made to the members of that firm.

The matter of the allowance of a counsel fee in a chancery suit is one resting in the discretion of the chancellor. He may make such allowance in any case in which he shall deem it proper to do so; but when he justly concludes that it would be unfair and inequitable to allow a counsel fee in a given case, his refusal to make such allowance is a proper and wise exercise of his discretion.

It is argued that by the promulgation of standing rule 147 of the court of chancery, the chancellor has stripped himself of this discretionary power. Assuming that the chancellor is compelled to observe the rules promulgated by him without regard to the question whether their enforcement in a given *597 case would be unjust and inequitable — a proposition which, in our opinion, is unsound — the rule referred to has no such scope as is claimed for it. It merely fixes the percentage to be allowed to complainant’s solicitor as a counsel fee in an uncontested foreclosure suit (the percentage being based upon the amount decreed to be paid by the defendant) when the decree awards a counsel fee. It contains no suggestion that the court must make such an-allowance when such judicial action would be opposed to equity and good conscience.

For the reason indicated, we conclude that the part of the decree appealed from should be affirmed.

For affirmance — The Chief-Justice, Trefchard, Parker, Mifturf, Kalisch, Black, Katzefbach, Campbell, Lloyd, White, Yaf Buskirk, McGleffof, Kays, Hetfield, Dear, JJ. 15.

For reversal — Hone.

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Per Curiam.

The appeal in this case is from the refusal of the chancellor to allow a counsel fee to the complainant’s solicitors in an uncontested foreclosure suit. The complainant, Henn, the present appellant, is a member of the firm of Henn & Burr, who prosecuted the suit, and the allowance of a counsel fee was asked to be made to the members of that firm.

The matter of the allowance of a counsel fee in a chancery suit is one resting in the discretion of the chancellor. He may make such allowance in any case in which he shall deem it proper to do so; but when he justly concludes that it would be unfair and inequitable to allow a counsel fee in a given case, his refusal to make such allowance is a proper and wise exercise of his discretion.

It is argued that by the promulgation of standing rule 147 of the court of chancery, the chancellor has stripped himself of this discretionary power. Assuming that the chancellor is compelled to observe the rules promulgated by him without regard to the question whether their enforcement in a given *597 case would be unjust and inequitable — a proposition which, in our opinion, is unsound — the rule referred to has no such scope as is claimed for it. It merely fixes the percentage to be allowed to complainant’s solicitor as a counsel fee in an uncontested foreclosure suit (the percentage being based upon the amount decreed to be paid by the defendant) when the decree awards a counsel fee. It contains no suggestion that the court must make such an-allowance when such judicial action would be opposed to equity and good conscience.

For the reason indicated, we conclude that the part of the decree appealed from should be affirmed.

For affirmance — The Chief-Justice, Trefchard, Parker, Mifturf, Kalisch, Black, Katzefbach, Campbell, Lloyd, White, Yaf Buskirk, McGleffof, Kays, Hetfield, Dear, JJ. 15.

For reversal — Hone.

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Bluebook (online)

141 A. 769, 102 N.J. Eq. 596, 1 Backes 596, 1928 N.J. LEXIS 622, Counsel Stack Legal Research, https://law.counselstack.com/opinion/henn-v-clifford-j-heath-inc-nj-1928.

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