Leavitt v. Arnott

208 P. 546, 111 Kan. 717, 1922 Kan. LEXIS 332

• Court: Supreme Court of Kansas
• Decided: July 8, 1922
• Docket: No. 23,858
• Status: Published

Opinion

The opinion of the court was delivered by

Porter, J.:

Mrs. Emma Leavitt, who died in 1910, devised by her last will a life estate in her real property to Harrison H. Leavitt, her son. In 1916 the property was about to be sold for taxes and this action was brought for the purpose of having a receiver appointed and a sale of some of the property. A receiver was appointed, certain pieces of real estate sold, and after the taxes and expenses had been paid the balance remaining in the hands of the receiver was invested in government bonds. In 1919, a supplemental petition in the action was filed by F. G. Drenning, representing some of the remaindermen, asking for the sale of the remaining real estate, and for the appointment of a permanent trustee to keep the money invested in securities. Issues were joined on the supplemental petition and on February 21,1920, the court made findings to the effect that it was for the best interests of the parties that the property be sold and the proceeds invested; the prayer of the petition was granted. No appeal was taken from the order directing the sale of the property.

Later F. G. Drenning filed a motion in the action asking for an allowance as attorney’s fee for procuring the supplemental decree. The motion was resisted by the appellants. Because Mr. Drenning did not represent the receiver appointed and because the supplemental petition was opposed by the appellants, it is insisted that the court had no authority to allow him an attorney’s fee. Cases are cited where it has been held that an allowance to an attorney for services which were not rendered in aiding the receiver in the performance of his duties is improper. In the supplemental proceedings, Drenning represented Hattie Bruce Leavitt, one of the remaindermen. The services performed by him were not for the benefit of the receiver, but were for the benefit of the other remaindermen, and as the trial court held, were for the benefit of all the parties. The receiver was an arm of the court and not concerned in the supplemental decree. We think in such a case the court had authority to allow an attorney’s fee.

The court heard evidence concerning the services performed by Mr. Drenning. Two attorneys testified that in their opinion his services were worth from $500 to $1,500. The court allowed him $500 attorney’s fee and certain items of expense incurred by him including the cost of advertising sales of certain of the properties. The appellants claim that the court erred in allowing any attorney fee to Mr. Drenning. In a cross-appeal, Drenning claims that the amount allowed is inadequate, and that the court should have allowed him at least $1,000. The trial court was familiar with the proceedings in the lower court and the services Mr. Drenning had performed as attorney, and was in a far better position to determine from the evidence and the court’s knowledge of the proceedings what was a reasonable allowance to make than this court is from a reading of the record.

One of the errors assigned by appellants is the action of the court in directing a sale of the real estate under the supplemental decree. However, no appeal was taken in time from that order of the court and this claim cannot be considered.

From a careful examination of the abstract and briefs of both parties we discover no reason for disturbing the judgment of the trial court, and it is therefore affirmed.