Baker v. Keller

This is an appeal by C. W. Baker and B. Platnauer, attorneys for John Gerber, as one of the executors of the last will of Conrad Iser, deceased, from an order allowing said attorneys a fee “for extraordinary services” professionally rendered by them for said Gerber, as such executor.

It appears that Adam Keller, coexecutor with said Gerber of the last will of said Iser, deceased, brought an action in the superior court in and for the county of Sacramento, against said Gerber, as such executor, upon two' claims against the estate of said deceased aggregating the sum of $10,380, of which the sum of $10,140 was for services for nursing the deceased during the last few years of his life, he being aged and an invalid during said years, and the sum of $240 was for “looking after and attending to the business and financial affairs of the decedent.” The appellants were employed by Gerber to represent him, as the executor of the will of the deceased, in said action.

The trial of the action resulted in a judgment in favor of Keller in the sum of $5,070, or $5,310 less than the amount for which he sued. A motion for a new trial was in due time made and the same was denied. An appeal from the judgment was prosecuted by appellants on behalf of said Gerber, as such executor, through the appellate and" supreme courts and the judgment was affirmed.

One of the appellants testified before the court in this proceeding respecting the amount of labor performed by them in the defense of the action and in prosecuting the appeal to a finality through the appellate and supreme courts. Thus it was made to appear that, prior to the trial of .said action, many important and “intricate” legal questions were raised by them preliminarily to the actual trial, that the preparation necessary to a proper presentation of said questions required much time and labor, that said legal questions having been decided by the court against

In addition to the above testimony, two attorneys, members of the Sacramento bar, and of high personal and professional character, were called by the appellants as witnesses, and testified that, having heard the statement before the court of one of the appellants, setting forth in' detail the amount of labor which had been performed by them in the case, in their opinion the value of the services rendered by appellants in said action was from $1,250 to $1,500. There was no other testimony than this as to the value of the services of appellants offered or received before the court in this proceeding.

The question which we are required to determine upon this appeal upon the record as made herein, and of which the above is in substance a recapitulation, is whether, in making the order from which this appeal is prosecuted, the court below abused its discretion. In other words, to justify us in holding that the court below erred to the prejudice of appellants in its allowance of attorneys’ fees for professional services rendered by appellants in the action referred to, we must be prepared to say that such allowance is, upon its face, so far out of proportion to the value of the services rendered as to constitute the making of the order of allowance a clear or manifest abuse of judicial discretion. After a painstaking consideration of the question thus propounded, we have not been able to satisfy ourselves that it can justly be held that the order complained of involved an abuse of the discretion with which trial courts are invested in disposing of such matters as the one now before us. If the application for the allowance of attorneys’ fees had been directly made before and the evidence directly heard by uS, we might have ordered the payment of a fee in excess of that allowed. [1] But we are here reviewing an order in the making of which, as is

[2] It has repeatedly been held that the trial court, in exercising its discretion in the matter of the allowance of attorneys’ fees for professional services rendered in behalf of estates of deceased persons, is not bound by the opinions of professional witnesses as to the value of such services. In Estate of Dorland, 63 Cal. 281 , the court said: “The [trial] court was authorized to compare its own judgment as to such value with the opinions of witnesses and make such allowance as should be just.”

In Spenser v. Collins, 156 Cal. 298 , 306, 307, [20 Ann. Cas. 49, 104 Pac. 320 , 323] the court said: “The position of these appellants is, apparently, that before a court can find the value of professional services it must have before it the testimony of experts to the effect that certain services are of certain value. But this is not the law. The testimony of experts is, of course, admissible to prove the value of attorneys’ services. (Forsyth v. Doolittle, 120 U. S. 73 , [ 30 L. Ed. 586 , 7 Sup. Ct. Rep. 408 , see, also, Rose’s U. S. Notes]; Louisville v. Wallace, 136 Ill. 87 , [ 26 N.. E. 493 ].) But the opinions of experts in such eases are not binding upon the jury, who may apply to the testimony ‘their own experience and knowledge of such services.’ (Head v. Hargrave, 105 U. S. 45 , [ 26 L. Ed. 1028 ]; Forsyth v. Doolittle, 120 U. S. 73 , [ 30 L. Ed. 586 , 7 Sup. Ct. Rep. 408 , see, also, Rose’s U. S. Notes]; Estate of Dorland, 63 Cal. 281 ; Schlesinger v. Dunne, 36 Misc. Rep. 529 , [ 73 N. Y. Supp. 1014 ].) ... If the jury may form a judgment as to the value of services in opposition to the opinions of experts, it necessarily follows that the testimony of experts is not essential. And so it has been held in cases tried before a jury (Bourke v. Whiting, 19 Colo. 1 , [ 34 Pac. 172 ]; Gibbons v. Missouri Pac. R. R. Co., 40 Mo. App. 146 ), as well as with respect to issues determined by a court or referee. (Noftzger v. Moffett, 63 Kan. 354 , [ 65 Pac. 670 ]; Dempsey v. Schawacker, 140 Mo. 680 , [ 38 S. W. 954 , 41 S. W. 1100 ].) If this doctrine is applicable to jury trials, there is much more reason for applying the

In Head v. Hargrave, 105 U. S. 45 , [ 26 L. Ed. 1028 ] (erroneously cited in respondent’s brief as in the 150 U. S. 45 ), was an action to recover the sum of $2,000, alleged to be due the plaintiffs from defendants for professional services as attorneys. The action was tried by jury, who gave plaintiffs a verdict for $1,800. There were several attorneys who testified at the trial and gave their opinions as to the value of the services rendered by plaintiffs for defendants. The opinions of these witnesses upon the question of the value of the services were widely divergent, the highest estimate being $5,440 and the lowest $1,000. The trial court in effect instructed the jury that, in determining the question before them, their judgment was to be controlled by the opinions of the attorneys testifying upon the question • of the value of the services rendered by plaintiffs, thus foreclosing the right of the jury to exercise their own “knowledge or ideas” upon the value of such services. Upon appeal, the case was reversed because of the giving of said instruction, the higher court declaring that, while' the jury in such a case, as in all cases, should be confined, in determining such an issue, to a consideration alone of the evidence adduced before them, at the same time they were not to be precluded from exercising their own judgment of the facts upon which the opinions of the experts were founded. In other words, it was therein, in effect, held that, while such expert testimony is admissible in the trial of such an issue, it was within the legal province of the jury to set up and act upon their own judgment, even in opposition to the opinions of the experts, upon the question of what the evidence showed would be the reasonable value of the services rendered.

The rule stated in the authorities referred to above has been so frequently applied in the cases and is so definitely settled that further citation is unnecessary. Many of the cases are named in the briefs, both of the respondent and the appellants.

[3] As before stated, however, it is plain to our minds that, while this court has just reason to express the highest regard for the learning and the untiring industry of the

We conceive it to be our duty to affirm the order, and it is so ordered.

Burnett, J., and Prewett, P. J., pro tem., concurred.

A petition for a rehearing of this cause was denied by the district court of appeal on May 31, 1921, and a petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on June 27, 1921.

All the Justices concurred.