Opinion
March 3, 1959 —
April 7, 1959.
APPEAL from a judgment of the circuit court for Milwaukee county: ELMER W. ROLLER, Circuit Judge. Affirmed in part; reversed in part.
For the appellant there was a brief by Hersh Magidson of Milwaukee, and oral argument by Arthur Magidson.
For the respondent there was a brief by Rubin, Ruppa Wegner of Milwaukee, and oral argument by Nathan Ruppa.
This is a partition action. The plaintiff, Irving A. Blumenfeld, and defendant, Sam Eichenbaum, each owned an undivided one half of the legal title of a building located at Van Buren and Lyon streets, in the city of Milwaukee. The building consisted of three stores, a garage, and 30 apartments. The plaintiff, Irving A. Blumenfeld, managed the building, collected and deposited the rents, ordered repairs, paid all operating expenses, and kept the records of income and disbursements. All disbursements were made by check bearing the required signatures of both parties.
The answer of the defendant, Sam Eichenbaum, did not contest the plaintiff's partition suit, but did allege that the interest of the plaintiff in said premises is subject to an equitable lien in favor of the defendant and counterclaimed that ever since September 14, 1955, the plaintiff had been in charge of books and records, collecting rents, and making disbursements in connection with the building, and that he failed to satisfactorily account for the rents collected and that he had made disbursements therefrom for large amounts in connection with maintenance of the building, that many of the items of repairs and maintenance charged by the plaintiff in operation of the building were not spent for repairs and maintenance, but were diverted by the plaintiff for his own use. That the exact amount of the money so diverted by the plaintiff for his own use was not ascertainable, but would be determined upon the trial of the action. In his prayer for relief he demanded that any moneys due and owing from the plaintiff to the defendant be determined and adjudged to be a lien upon the interest of the plaintiff and in favor of the defendant, prior to any sale of the property under any judgment to be entered herein, and further requested costs and disbursements be allowed, including reasonable attorneys' fee.
The sheriff of Milwaukee county conducted a sale of the premises pursuant to the order of the court on the 25th day of February, 1958, and the same was sold to the defendant, Sam Eichenbaum, for the sum of $67,400, subject to all legal Incumbrances. The down payment made by Sam Eichenbaum to the sheriff was $3,370. The confirmation order provided that the defendant receive a sheriff's deed upon payment of the balance of $30,330 to the clerk of the circuit court, representing one half of the purchase after crediting the amount of $3,370 paid by the purchaser on the date of sale, and pay the balance due upon the mortgage, and the clerk to hold the said proceeds subject to the further order of the court.
A stipulation was entered into between the parties by which the issues of accounting of rents and profits, as well as tax, rent, and interest adjustments, attorneys' fee and related matters, were reserved for trial, the clerk to hold the said proceeds subject to the further order of the court.
The joint building bank account of the partnership, after making certain adjustments, had a balance in the amount of $1,837.36.
The only testimony at the trial was that of plaintiff and defendant. The trial court, after hearing the testimony, found that the plaintiff properly accounted to the defendant for all income and disbursements during the common ownership of the building and dismissed the counterclaim of the defendant.
Judgment was entered in favor of the plaintiff and against the defendant for interest and attorneys' fee. From this judgment the defendant Eichenbaum appeals.
We have reviewed the testimony and evidence submitted in this case. In a trial to the court findings of fact will not be set aside on appeal unless they are contrary to the great weight and clear preponderance of the evidence. Swazee v. Lee (1951), 259 Wis. 136, 137, 47 N.W.2d 733; Lerner v. Lerner (1948), 252 Wis. 87, 31 N.W.2d 208; Ische v. Ische (1948), 252 Wis. 250, 31 N.W.2d 607; and Engle v. Peters (1952), 261 Wis. 347, 350, 53 N.W.2d 8.
The trial court in its determination found that the share or interest of defendant Eichenbaum in the joint building bank account of $1,837.36 was $405.14, and the partnership interest of plaintiff Blumenfeld was $405.14, and an additional sum of $1,027.08 was allowed to Eichenbaum pursuant to adjustments that had been determined in the trial.
The sale was confirmed on March 21, 1958, and the confirmation order signed March 24th. The purchase price was paid into court on March 27, 1958. The trial court held that the stipulation and the order made in respect to the balance of the purchase price held by the clerk was for the defendant's benefit in protecting his funds against the alleged misappropriations which the evidence in the trial of the accounting action might disclose, and held that the purchase price on deposit should bear interest at the statutory rate from April 11, 1958. This being a proceeding in equity, we find no abuse of discretion in allowing interest.
There being no record made with respect to the value of the services rendered by the plaintiff in connection with keeping books and records and making collections, the trial court was correct in allowing no compensation to the plaintiff for such services.
Costs and attorneys' fee. The minimum attorneys' fee based on the schedule of the Milwaukee Bar Association in partition actions is $1,474. The trial court found that the defendant's answer and counterclaim did not, in the opinion of the court, make this proceeding adversary in character and allowed additional attorneys' fee for extraordinary services in the sum of $300. The court ordered the defendant to pay one half of the $1,474 plus $300 attorneys' fee allowed for extraordinary services in defending the counterclaim, making a total of $1,037, and the plaintiff's disbursements.
The court in making its determination as to the amount of attorneys' fee to be allowed used the minimum Milwaukee Bar Association rates as a guide, set the attorneys' fee in the partition suit at $1,474, required one half thereof to be paid by each of the parties, allowed the additional amount of $300 to the plaintiff in defense of the counterclaim, and this is within its discretion.
Sec. 276.27, Stats., provides:
"COSTS, HOW PAID. Unless the court otherwise direct the costs of every party to the action, with reasonable attorney's charges to be allowed by the court upon notice served personally, or by mail, on the parties who are known to be residents of this state, must be deducted from the proceeds of the sale and paid to his attorney; but the court may, in its discretion, direct the costs and expenses of any trial, reference, or other proceeding in the action to be paid out of the share of any party in such proceeds or may render judgment against any party therefor."
The statute is mandatory and requires notice to be served personally or by mail. The record fails to disclose that the proper notice as required under the statute was served.
We conclude that the learned trial court's findings and judgment thereon, with the exception of allowance of costs and attorneys' fee, must be sustained and the judgment is affirmed as so modified. By the Court. — In so far as the judgment awards costs and attorneys' fee it is reversed, and cause remanded for further proceedings. In all other respects it is affirmed. No costs to either party on this appeal. Appellant to pay clerk's fees.