Opinion
Hearing Granted by Supreme Court Feb. 7, 1929.
Appeal from Superior Court, Los Angeles County; J. C. Needham, Judge.
Condemnation proceeding by the City of Long Beach against Theodore J. Sten and another. From a judgment granting the motion to retax costs on dismissal of the proceeding, defendant William Ellis Lady appeals. Reversed, with directions.
COUNSEL
William Ellis Lady, of Los Angeles, pro se.
Bruce Mason, Geo. W. Trammel, Jr., Fred F. White, and John K. Hull, all of Long Beach, for respondent.
OPINION
KEETCH, Justice pro tem.
The plaintiff filed an action in 1923 in the superior court of Los Angeles county to condemn certain property in the city of Long Beach jointly owned by the defendants Sten and Lady. The latter is an attorney at law and appeared and defended on behalf of his co-owner and for himself personally. An interlocutory judgment in the sum of $19,620 was obtained in their favor, and, subsequent to the entry of judgment, the plaintiff city passed an ordinance abandoning the condemnation proceedings and duly obtained a judgment and order dismissing the action against defendants. The appellant Lady, on behalf of himself and Sten, filed separate cost bills, claiming, among other items, $1,500 as attorney’s fees under section 1255a of the Code of Civil Procedure. Plaintiff moved to retax the costs claimed by defendant Sten, particularly the amount claimed as attorney’s fees, and also moved to retax and disallow the costs claimed by Lady as attorney’s fees, on the ground of the latter being an attorney at law and having appeared and defended in his own behalf. Evidence was received by the court as to the value of the services rendered; the defendant Lady testifying that he had spent three or four days in preparing for trial and the greater portion of one day in actual trial. An expert witness testified that, on the basis of the amount of the judgment rendered in the case, the reasonable value of the services of an attorney representing the land of defendants Sten and Lady was $750, and that the value of the services of an attorney representing Sten would be $375. The court granted the motion to retax, fixing the amount of the attorney’s fees for Sten at $375 and disallowing the attorney’s fees as claimed by the defendant Lady. It is from this order that the latter appeals.
Section 1255a of the Code of Civil Procedure, relating to the abandonment of condemnation proceedings, provides in part as follows: "Upon such abandonment, express or implied, on motion of defendant, a judgment shall be entered dismissing the proceeding and awarding the defendant his costs and disbursements, which shall include all necessary expenses incurred in preparing for trial and reasonable attorney’s fees." It is contended by appellant that the section above referred to having specifically and specially provided for the allowance of costs and reasonable attorney’s fees in connection with the abandonment and dismissal of a cause of action by the party initiating it, the mere fact that an attorney happens to be the owner of the property sought to be taken, and defends for himself in his professional capacity, should not deprive him of just compensation for the time and legal services rendered. He argues; "The statute authorizes it, and common sense and fairness justify it, just as much as if instead of appearing in propria persona he had gone out and obtained another lawyer to represent him, and the defendant himself devoted his own time to other litigation or legal work."
Appellant suggests that there is no authority in this state which applies directly to the situation presented, and we have failed to discover any. It is true that, in support of its contention that appellant, as the attorney in the case, is not entitled to attorney’s fees because he appeared in propria persona, the respondent cites the case of Patterson v. Donner, 48 Cal. 369, where the plaintiff, an attorney, appeared personally in the action. As quoted by respondent, the court there said: "The judgment of the court below should be reduced, however, by the sum of five hundred dollars, fee of counsel for foreclosure. The action was brought and prosecuted by the plaintiff personally. We do not think that the stipulation in the mortgage sued on, for counsel fee, can apply where no counsel fee was paid by the plaintiff." As indicated, however, the case cited involved the matter of foreclosure of what was declared to be a mortgage by the court, wherein it provided for the allowance of counsel fees for such foreclosure. Patterson held the note and appeared both as plaintiff and as attorney in person. It is obvious that this presents an entirely different situation from the instant case, where the defendant and appellant has been forced under the right of eminent domain exercised by the plaintiff, the city of Long Beach, to defend, either in person or by some other attorney, his rights as the owner of property sought to be condemned. Section 1255 of the Code of Civil Procedure provides as follows: "Costs may be allowed or not, and if allowed, may be apportioned between the parties on the same or adverse sides, in the discretion of the court." This discretionary power is limited by section 14 of article 1 of the Constitution, which provides that "private property shall not be taken or damaged for public use without just compensation having first been made." It was held that the costs referred to in this section were the ordinary and usual costs attending trials and hearings under statutory provisions, and that counsel fees were not allowable to a defendant in a general judgment in his favor in condemnation proceedings. In 10 California Jurisprudence, at page 432, it is said in this connection: "To require the defendants to pay any portion of their own costs necessarily incidental to the trial of the issues on their part, or any of the costs of the plaintiff, would reduce the just compensation awarded by the jury by a sum equal to that paid for costs." These costs, however, did not include attorney’s fees, and in 1911 the Legislature enacted and added to the Code of Civil Procedure section 1255a, covering abandonment proceedings, and has, as we have seen, specifically provided for costs and reasonable attorney’s fees.
The question of the constitutionality of section 1255a as to attorney’s fees was raised in the case of City of Sacramento v. Swanston, 29 Cal.App. 212, 155 P. 101, and its constitutionality upheld in an exhaustive opinion by Mr. Justice Hart. Referring to the specific character of this statute, the court said: "Thus it must at once become obvious that a proceeding for the condemnation of private property for a public use, under the power of which we have been speaking is, in its origin, its purpose and its characteristics, essentially different from any other action or proceeding established by our law as an instrumentality for the enforcement of a private right or the redress or prevention of a private wrong. It is, indeed, not included by the code within the category of ordinary actions at law or suits in equity, but is denominated, with others, as a ‘special proceeding,’ and even as to other proceedings so denominated in the code, it is, by reason of the characteristics peculiar to it, strictly sui generis. It, therefore, cannot be doubted that the proceeding to condemn property under the right of eminent domain is so differentiated from the ordinary actions or proceedings in a court of justice ‘by which one party prosecutes another for the enforcement or protection of a right, or the redress of a private wrong,’ as to bring it within the settled test justifying the assignment of the proceeding to a particular class for the purposes of reasonable provisions not applicable to other classes of actions. *** In the case at hand there exists no basis for the reasoning which led to the conclusion arrived at in Builders’ Supply Depot v. O’Connor, 150 Cal. 265 [88 P. 982, 17 L. R. A. (N. S.) 909, 119 Am. St. Rep. 193, 11 Ann. Cas. 712] and in Gulf etc. Ry. Co. v. Ellis, 165, U.S. 150 [17 S.Ct. 255, 41 L.Ed. 666]. In those cases it was held, as we have seen, that an allowance to the plaintiff of an attorney’s fee if he was victorious in the trial was distinctly discriminatory, because no such allowance was provided for the defendant in case he prevailed at the trial. In this case, however, as in no other case of which we can presently think, the statute gives to the plaintiff the right to abandon the proceeding, even after a trial thereof and a verdict and judgment of condemnation rendered and entered, and, as a penalty for such abandonment, accords to the defendant the right to be reimbursed by the plaintiff for not only the ordinary costs but an attorney’s fee. No right of abandonment is awarded by the statute to the defendant, and, in the very nature of the case, there could not be so that it would affect or impair the right of the plaintiff to condemn and take his property. The conditions as to the two parties in the proceeding are essentially and radically different." This language is applicable as distinguishing from the case at bar the cases of Patterson v. Donner, supra, Bank of Woodland v. Treadwell, 55 Cal. 379, and City Investment Co. v. Pringle, 49 Cal.App. 353, 193 P. 504, also cited by respondent. The same questions were raised in the case of Silver Lake Power & Irrigation Co. v. City of Los Angeles, 32 Cal.App. 123, 162 P. 432, and the case of City of Sacramento v. Swanston was quoted and approved.
In consonance with the language of these decisions with respect to the interpretation and purposes of section 1255a, it is fair to assume that the intention of the Legislature in the enactment of that statute was to indemnify and make whole a defendant in an abandoned condemnation proceeding for the time, trouble, and expense, including attorney’s fees, to which he has been put by the plaintiff. That the law under such circumstances allows attorney’s fees is now beyond controversy, and the only question presented is whether or not an attorney appearing for himself as a defendant in such an action is entitled to his fees in his professional capacity. It would seem from a review of the authorities, English and American, that the weight of opinion is decidedly in the affirmative. Thornton, in his work on Attorneys at Law (volume 2, p. 861), says: "An attorney who conducts his own litigation is entitled to his statutory fees. The reason for making this distinction between parties who are attorneys and those who are not is that when the party is an attorney he gives his professional time, knowledge and experience in the conduct of the defense of his suit which he would otherwise have to pay another attorney for rendering. It can make no difference to the defeated party, who is by law bound to pay the costs of the attorney of the prevailing party, whether that attorney is a party himself or another attorney employed by him. He, like any other attorney, is paid for his time and services; for if he renders them in the management and trial of his own case they may amount to as much pecuniary loss or damage to him as if he had paid another attorney for doing it"-citing Kopper v. Willis, 9 Daly (N.Y.) 460. See, also, Flaacke v. Jersey City, 33 N.J.Eq. 57; Drake v. Berry, 42 N.J. Law, 60; Crommelin v. Dinsmore, 1 City Ct. R. (N.Y.) 69, and Willard v. Harbeck, 3 Denio (N.Y.) 260.
Among the English cases, the leading authority appears to be London Scottish Benefit Society v. Chorley, Crawford, and Chester, 12 Q. B. Div. 452. Denman, J., reviewing that case, said: "In this action the defendants were solicitors. They employed no agents, but conducted the whole business as defendants in person. They succeeded in their defense, and obtained judgment: and the question has arisen, upon taxation of costs, whether, where a solicitor sues or defends in person, he is entitled only to such costs as any other defendant in person would be entitled to, viz., the costs out of pocket, or whether he is entitled to such costs as a successful defendant would be entitled to who does employ a solicitor, saving only such costs as are in the nature of things not chargeable by reason of their being instructions to himself, or matters of a like nature. The master has allowed the costs in dispute, and, upon a summons at chambers, my Brother Mathew, without expressing any opinion, referred the matter to the Court; and therefore the case comes before us as an original application to review the decision of the master. We took time to consider, owing to our having ascertained that there has been some difference of opinion amongst the taxing officers upon the subject. For the plaintiffs it was contended that these costs ought not to be allowed, and we were referred to the statute 23 Henry 8, c. 15. I do not think any question can be raised here founded upon the distinction between plaintiff and defendant. The origin of costs is to be traced to some early statutes: but none of the rules have at all, I think, affected the question whether, in taxing costs on behalf of a successful defendant who is a solicitor, the master ought or ought not to include such costs as those which have been allowed here. That is now to be decided for the first time and by the same practice, I think, by which it was always to be decided: and we have to look at what is the proper view of the matter, just as much with reference to the present state of things as we should have had to do before the passing of the Judicature Acts, or before the more recent Acts relating to costs. In Harold v. Smith, [5 Hurl. & N. 381] (1) Bramwell, B., laid it down as a general principle that costs are allowed by way of indemnity; and it was argued that these costs cannot fall within that principle, because they are not costs which the defendants have incurred or for which they have become liable. This is, no doubt, a very plausible argument, but I do not think it is by any means conclusive, because, treating the costs as being in a reasonable sense of the word equivalent to an indemnity, I am not aware of any principle which ought to prevent a successful party who is a solicitor, and who does solicitor’s work, from being indemnified not merely for the time he must necessarily expend as a witness in his own case, but also for the pains, trouble, and skill which he has to incur and to exercise in order to bring it to a successful conclusion. There is nothing to prevent ‘costs’ thus incurred from falling within the fair meaning of an ‘indemnity,’ though not actually money out of pocket such as he would have had to pay if his action or his defense had been intrusted by him to another solicitor. The solicitor’s time is valuable: he applies his skill to a suit or action in which he is obliged to spend his time and exercise his skill in consequence of the wrongful act of his opponent; and therefore it is not an unreasonable view that the word ‘costs’, in the sense of an ‘indemnity,’ should be held fairly to include a reasonable professional remuneration for that work which, if he did not do it himself, would have had to be done by another solicitor and paid for by his unsuccessful opponent. If that be so, and the word ‘indemnity’ is reasonably capable of being used in that sense, it becomes a mere question of practice whether the costs here claimed by the defendant ought, as a rule, for it is not necessary to consider exceptional cases, to be allowed to a successful litigant, being a solicitor and conducting his own case." Manisty, J., sitting in the same case, in approving the words of Justice Denman, added: "When a party to an action, be he plaintiff or be he defendant, conducts it himself, and is a solicitor, if he is entitled to his costs he is entitled to them as solicitor’s costs: and why should he not be? I think my Brother Denman has answered that also conclusively. Justice seems to require it. Time is money to a solicitor; and why should he not be as much entitled to his proper costs, if he affords the time and skill which he brings to bear upon the business where he is a party to the action as he is where he is not a party? Again, I agree with my Brother Denman that it is for the advantage of the party against whom the judgment is given that his opponent is a solicitor, because there are many charges which the latter cannot make and which would be allowed if the claim or defense were conducted by another solicitor. Justice and reason, therefore, seem to me to favor the conclusion to which we have come."
Another English case is that of In re Donaldson, 27 Chan. Div. 545. We cite this case for the reason that it was there held that the solicitor mortgagee in a foreclosure action was entitled to his fees in his professional capacity, contrary to the holding in the case of Patterson v. Donner, cited by respondent. Lord Bacon, as Vice Chancellor, delivering his opinion, said: "There is no rule more true, more well-established, or more familiar than that a trustee is not entitled to make a profit out of his trust, though he is entitled to the costs incurred by him in the exercise of his trust; but it appears to me that this rule has no application to the present case, because the respondent Mr. Donaldson is not a trustee for the Applicant. Trustees are obliged to protect their trust property and must of necessity frequently employ a solicitor for that purpose, and they are entitled to the costs they have so incurred. If I accede to Mr. Hemming’s argument, I shall be obliged to decide that in a case where a separate solicitor is not employed, and a solicitor is both trustee and mortgagee, he cannot, under any circumstances, be entitled to his costs of acting as solicitor for himself and his cotrustees. For that proposition no authority has been cited; but there is authority for the proposition that a solicitor acting for himself has a right to charge for his costs. Now here are trustees acting in their trust, and having advanced money on mortgage in pursuance of their trust proceed to realize their security. One of these trustees is a solicitor. Being trustees they are entitled to employ a solicitor, and they employ one of themselves as such. Because that one trustee happens to be a solicitor I am asked to direct the Taxing Master to disallow the costs which have been incurred through his having been employed as solicitor. That I cannot assent to. I cannot allow that when a solicitor happens to be a trustee he is to be treated as for the time being suspended from practice or struck off the rolls so far as regards the matter in which he is a trustee. I do not think a solicitor is to be deprived of civil rights because he is a trustee. If he were a sole surviving trustee, and had to file a bill for foreclosure of mortgaged property, it could not be said he was not entitled to the costs of the suit; on the contrary, he would be entitled to all his costs. Now what are the facts here? Certain mortgagees enforce their securities against their mortgagor. One of the mortgagees, Mr. Donaldson, who is a solicitor, does the solicitor’s work in the matter and charges the mortgagor with profit costs for the work so done. The matter comes before the Taxing Master, when the mortgagor objects that Mr. Donaldson is not entitled to charge profit costs in respect to the mortgages or any other costs than those out of pocket. The Taxing Master then makes a certificate answering the objections as follows: [His Lordship read the certificate and continued:] I cannot say that that is wrong. I know of no principle requiring me to say that the items in question are wrongly charged. The case of London Scottish Benefit Society v. Chorley (1) shews clearly that a solicitor is entitled to charge as a solicitor for costs in an action to which he is a party. I cannot therefore disaffirm the decision at which the Taxing Master has arrived."
Among the American cases cited by Mr. Thornton, we refer to that of Flaacke v. Jersey City, supra, where it was said: "The complainant objects not only to certain items of the bills of costs as taxed for the defendants Andrew V. Church and S. C. Mount respectively, on the ground that the allowances are greater than the law authorizes, but insists that Mr. Mount, who is a solicitor of this court, and appeared in the cause in his own person, is not entitled to any costs, because he did not appear by solicitor. The objections cannot be sustained. A solicitor who is a party to a suit and appears in his own person, is entitled to the allowances made by the fee bill for his services therein, except, of course, for a retaining fee"-citing Willard v. Harbeck, supra.
In Crommelin v. Dinsmore, supra, which was an action where the attorney was sued on a contract and defended in person, the court said: "The services of the defendant (who is an attorney and counsellor-at-law) in his own defense, are presumably as valuable as the same services would have been in the defense of another; and if the doctrine of indemnification is to prevail, there is no reason why he should not be similarly compensated."
It is argued by respondent that appellant Lady "would have been compelled to expend the same amount of time in the preparation and trial of the cause had his codefendant been the sole owner of said property," and that the fixing of the fee was discretionary with the court. Conceding this, it would appear, however, that, while he did not have to do so, being himself qualified to pass as an expert, the court accepted the valuation of $750 as indicated by the legal expert witness by allowing one-half of that amount to the defendant Sten and disallowing any fee for the defendant Lady. The only theory upon which the amount could have been so reduced is that Lady was not entitled to any fees as an attorney in defending as to the one-half interest in the property owned by him. As we have seen, under section 1255a and the authority of the cases cited, this discrimination is inequitable. He is entitled to a reasonable attorney’s fee independent of what may have been allowed his codefendant Sten.
The judgment granting the motion to retax costs is reversed, with directions that the sum of $375 be allowed as attorney’s fees for the defendant Sten, and that, in addition, the trial court allow such attorney’s fees for defendant Lady as in its discretion it may deem reasonable.
We concur: WORKS, P. J.; CRAIG, J.