Plank v. Hertha

109 N.W. 732, 132 Iowa 213

• Court: Supreme Court of Iowa
• Decided: November 14, 1906
• Status: Published

Opinion

Deemer, J.

1 Intoxicating liquors: nuisance: attorney’s fees.

- The action is by a private citizen to enjoin a liquor nuisance, under section 2406 of the Code. Decree was rendered as prayed, and order of abatement made, but the court refused to tax attorney’s 7 J ^ee f°r plaintiff’s attorney. The latter part 0f sectil 2406 reads as follows: “If plaintiff is successful in the action an attorney’s fee of $25:00 shall be taxed as costs in his favor.” These costs may be taxed whether the action is instituted in the name of the State of by a private individual. Farr v. Seaward, 82 Iowa, 221. Section 2429 of the Code also provides for the taxation of attorney’s fees in an action of this character; the statute reading that the court shall allow the attorney prosecuting the case a reasonable sum for his services. We need not determine which of these statutes is applicable, for under either plaintiff was entitled to have an attorney’s fee taxed.

2. Same. While we have no argument for' appellee, it would seem that the court refused to tax the fee, either because the attorney who appeared was not plaintiff’s attorney, or because he was paid for his services by someone ejse_ ja that plaintiff said he did not employ the attorney who was ostensibly appearing for him, and did not become responsible to him in any manner; but it also appears that he consented to the prosecution of the suit in his name, and that when called as a witness he stated that he was the plaintiff, and gave testimony against the defendant. Under such circumstances, plaintiff would be estopped to deny that Acres was his attorney. At any rate, there was such recognition of his appearance and such adoption of the proceedings by plaintiff as that he was entitled to have an attorney’s fee taxed.

As to the other proposition, there is no testimony that the attorney had received, or was expecting to receive, any other compensation for his services in this ease than that allowed by law. Even if he were paid by others, plaintiff would nevertheless be entitled to have the statutory fees taxed as costs.

An attorney’s fees of $25 should have been taxed as part of the costs, in accord with the statutory provisions. Plaintiff also asks us to tax an attorney’s fee in this court for services rendered on the appeal, but this we cannot do. There is no statute providing for a fee upon an appeal to have fees taxed in the lower court. Plaintiff secured his decree of injunction in the lower court. His appeal is from an order refusing to tax attorney’s fees as costs. Upon that appeal no attorney’s fees can be taxed.

The trial court was in error in refusing to tax attorney’s fees, and the cause is remanded for a decree in harmony with this opinion.

Reversed and remanded.