Opinion
Submitted on briefs on the merits March 30, 1926
Motion to dismiss appeal denied March 2, 1926 Modified April 20, 1926
From Multnomah: ROBERT G. MORROW, Judge.
For the motion, Mr. Ernest Cole. Contra, Messrs. Emmons, Lusk Bynon.
For the appellants there was a brief over the name of Messrs. Emmons, Lusk Bynon.
For the respondents there was a brief over the name of Mr. Ernest Cole.
Section 548, Or. L., provides generally for the review on appeal of judgments and decrees, and, so far as it applies to this matter, is as follows:
"No appeal to the supreme court shall be taken or allowed in any action for the recovery of money or damages only unless it appears from the pleadings in the case that the amount in controversy exceeds $250."
Counsel for respondents has cited many decisions from other states under statutes similar to our own, but not one of them seem to be in point in this case. In this state, the distinction between a suit in equity and an action at law is well preserved, and it will be seen that that part of the section quoted applies only to actions. The fact that the principal matter concerning which the suit was instituted was finally admitted by the defendants did not transmute the suit into an action, and, whatever the rule may be under the peculiar statutes of other states, we are bound by the terms of the statute.
The motion to dismiss will be overruled.
MOTION OVERRULED.
Modified April 20, 1926. ON THE MERITS. ( 245 P. 321.)
This case presents the sole question of whether under a contract for the sale of land, the vendee who has fully performed and paid the consideration money is, upon winning the case, entitled to recover attorney's fees in addition to costs and disbursements in a suit for the specific performance of the contract in the absence of some statute or agreement for the payment of such fees. Attorney's fees are recoverable only when provided for by law or by contract. Section 561, Or. L., provides:
"The measure and mode of compensation of attorneys shall be left to the agreement, expressed or implied, of the parties; but there may be allowed to the prevailing party in the judgment or decree certain sums by way of indemnity for his attorney fees in maintaining the action or suit, or defense thereto, which allowances are termed costs."
As used in this statute, the term "costs" "properly includes only the indemnity for attorney fees fixed by statute." Livesley v. Strauss, 104 Or. 356 ( 206 P. 850, 207 P. 1095); In re Pittock's Estate, 102 Or. 159 ( 199 P. 633, 202 P. 216, 17 L.R.A. 218); State ex rel. v. Estes, 34 Or. 196, 213 ( 55 P. 25); Mitchell Lewis Co. v. Downing, 23 Or. 448 ( 32 P. 394); Wood v. Fitzgerald, 3 Or. 568, 583.
In State v. Estes, supra, this court said:
"The expenses incident to the trial of an action not being recoverable at common law, the right to recover them must be found in the statute."
Again in Wood v. Fitzgerald, the court said:
"All the authorities concur in declaring the right to recover costs to be purely statutory. No such right existed at common law."
In the instant case, in addition to obtaining a decree requiring the defendants to execute a deed to plaintiff for the property involved, and awarding to plaintiff the costs and disbursements of the suit, the court, in the absence of any provision in the contract or of any statute authorizing such decree, inserted in it a provision requiring the defendants to pay, in addition to the statutory costs and disbursements, the further sum of $125 as attorney's fees, and from that portion of the decree awarding such attorney's fees defendants appealed.
There is no provision of statute or condition contained in the contract which authorized the court to require the defendants to pay these attorney's fees, and for that reason the decree of the lower court will be modified, eliminating therefrom the requirement that defendants pay plaintiffs the sum of $125, or any part thereof as attorney's fees, but except as modified, the decree of the lower court will be affirmed. MODIFIED.