Opinion
Decided December 9, 1929.
Injunction — Taxpayer's suit — Reasonable attorney fees included in costs — Section 2923, General Code — Attorney fees not allowed when injunction denied upon appeal — All questions and parties transferred to appellate court by appeal — Mandamus denied to compel payment of attorney fees.
1. Section 2923, General Code, allowing costs, including attorney's reasonable compensation, to a taxpayer recovering judgment, requires the inclusion in costs of a reasonable compensation to his attorney.
2. Appeal brings up whole case, transferring to the appellate court all questions between the parties.
3. A decree of the Court of Appeals on appeal, refusing a taxpayer an injunction and assessing costs upon such taxpayer, supersedes the decree of the common pleas court allowing the taxpayer an injunction and attorney's fees.
4. A petition in mandamus, to require the county auditor to issue a warrant for attorney's fee which the common pleas court allowed a taxpayer, is demurrable, where the Court of Appeals, on appeal, refused the taxpayer an injunction and assessed the costs upon him.
ERROR: Court of Appeals for Cuyahoga county.
Mr. Geo. D. Hile, in propria persona. Mr. R.T. Miller and Mr. D.R. Hertz, for defendants in error.
The plaintiff in error, relator, instituted a mandamus proceeding to require the auditor of Cuyahoga county, Ohio, to issue his warrant upon the treasurer of said county for $750. The basis of the said action is to be found in a previous action in the court of common pleas of Cuyahoga county, entitled State of Ohio, ex rel. George D. Hile v. John A. Zangerle et al. That action was for an injunction to restrain the board of county commissioners of Cuyahoga county from purchasing certain lands in connection with the county morgue. In the court of common pleas, the plaintiff prevailed in that action, and an injunction was granted.
Included in the journal entry was the following language: "Therefore it is considered, adjudged and decreed that the defendant, Zangerle, be perpetually enjoined from issuing his warrant upon the County Treasurer for the payment of the aforesaid premises in the sum of Twenty-six Thousand Dollars and the County Treasurer be enjoined from paying said warrant, so issued by the Auditor, for which judgment was rendered in favor of the plaintiff against all of said defendants for his costs, to all of which excepted, and appeal bond was fixed by court in the sum of Two Hundred Dollars."
A further matter appearing in said entry is as follows: "This being a taxpayer's action and the plaintiff having been further entitled to the relief prayed for and judgment ordered in his favor, the Court as required by it under Section 2923, G.C., allows plaintiff as compensation as attorneys fees in the amount of Seven Hundred Fifty Dollars, which order is to be paid out of the County Treasury upon the Auditor's warrant for said sum and payable to George D. Hile."
Thereafter appeal was had in the said cause to the Court of Appeals of this county, and, upon consideration thereof, the court refused the injunction and assessed the costs against the plaintiff, making the following entry: "October 8, 1928. To Court:
This cause came on to be heard upon the appeal and was submitted to the Court on the pleadings and evidence; on consideration whereof, the court finds that the plaintiff is not entitled to the relief prayed for and the petition is dismissed, to which the plaintiff excepts. It is therefore considered that the defendant go hence without day and recover of the plaintiff his costs to this suit. Judgment is rendered against the plaintiff for the costs herein."
Plaintiff's theory of the instant case seems to be that, because the court of common pleas made the $750 allowance heretofore mentioned, the subsequent act of the Court of Appeals refusing the injunction and assessing the costs of suit upon the plaintiff had no effect upon that part of the decree of the court of common pleas awarding such compensation.
The question submitted to this court is whether or not the attorney fees were awarded as a part of the costs. The attorney fees awarded by the court of common pleas were made under and by virtue of Section 2923, General Code, which provides: "If the court hearing such case is satisfied that such taxpayer is entitled to the relief prayed for in his petition, and judgment is ordered in his favor, he shall be allowed his costs, including a reasonable compensation to his attorney."
We believe the language of this statute is plain, clear, and unambiguous, and there can be no doubt that the language means that the taxpayer shall be allowed his costs, which may include a reasonable compensation to his attorney. It therefore follows that it is reasonable to conclude that the intendment of the Legislature in the above statute was that a reasonable compensation for the attorney bringing the suit shall be included in the costs.
It is not necessary for us to resort to common-law definition for the term "costs," as the statute clearly indicates that the word or term "costs," as used in the statute, includes attorney fees.
We must not lose sight of the fact in this case that the finding and judgment of the common pleas court was taken to the Court of Appeals on appeal. Therefore it must follow that the effect of such appeal proceedings upon the previous decree of the common pleas court was to substitute for the decree of the common pleas court the decree of the Court of Appeals, keeping in mind that an appeal brings up the whole case and transfers to the appellate court every question between the parties. It therefore follows that a proper view of the effect of the decree of the Court of Appeals upon the decree of the common pleas court is that the decree of the Court of Appeals completely supplants and takes the place of the decree of the lower court. It therefore follows that the decree of the lower court as to costs must give way to the decree of the higher court on the same subject-matter.
As shown by the record, the facts are that the Court of Appeals not only refused a decree awarding attorney fees, but went further and assessed the costs against the plaintiff. We therefore hold that the demurrer submitted in the court below in this case was properly sustained.
Therefore the finding and judgment of the court below will be affirmed, and plaintiff's petition dismissed.
Judgment affirmed.
SHERICK, J., concurs.
LEMERT, P.J., and SHERICK, J., of the Fifth Appellate District, sitting by designation in the Eighth Appellate District.