Wehrman v. McFarland

8 Ohio N.P. 673

• Court: Court of Common Pleas of Ohio, Hamilton County
• Decided: July 1, 1900
• Status: Published

Opinion

Spiegel, J.

After a careful examination of the very numerous exceptions to the report of Judge Clement Bates, special master herein, both of the law involved in said exceptions and the evidence reported by the master, I can find no valid objections to his report. He has painstakingly examined every question referred to him by me after judgment rendered in this cause, and brought to bear upon them his thorough knowledge of the law and his ability to sift the evidence so as to arrive at a just conclusion upon the facts. His report will be confirmed, without going into details upon every exception raised, and the latter are overruled.

The only other question to be determined is the application for an allowance of plaintiff’s attorney fees. The parties to this cause are all antagonistic; no one has done anything with the purpose of acting on behalf of all. The filing of the petition certainly does inure to the general benefit; but it is the only step of that kind, and its filing was not on behalf of all, but to enforce plaintiff’s individual rights. Were there a fund under the court's control, compensation for filing the petition' would have been rightly allowed in accordance with the decision in Payne v. McNamara, 6 Circ, Dec., 62. But there being no funds or assets, but only personal judgments against the partners, this court can not require these judgments to include a pro rata share of plaintiff’s counsel fees, or render an additional judgment for the attorneys’ fees of any one party acting on his own behalf alone, merely on the ground— for I can find none other — that he initiated the proceedings. Indeed, to do so, would be to invite the same race for forcing such suits that has become somewhat of an abuse in partition cases.

The motion must be refused.