Opinion
Hearing Granted by Supreme Court Feb. 23, 1928.
Appeal from Superior Court, Fresno County; S. L. Strother, Judge.
Consolidated action by the County of Tulare against the City of Dinuba and others. From a portion of the decree denying an application for attorney’s fees, W. W. Middlecoff and others appeal. Affirmed.
COUNSEL
J. E. Greene, City Atty., W. W. Middlecoff, of Los Angeles, H. K. Landram, of Merced, M. E. Power, of Visalia, and Mason A. Bailey, Dist. Atty., of Madera (H. E. Schmidt, of Bakersfield, of counsel), for appellants.
U.S. Webb, Atty. Gen., and Leroy McCormick, Dist. Atty., and Frank Lamberson, Dep. Dist. Atty., both of Visalia, for respondent.
OPINION
KOFORD, P. J.
This is an appeal from a portion of the same decree described in County of Tulare v. City of Dinuba et al. (Cal.App.) 263 P. 249. The portion of the decree appealed from is that portion which denies an application of appellant Middlecoff for attorney fees to be paid and withdrawn from the portion of certain franchise tolls payments awarded to the county of Tulare by the decree.
The subject-matter of this part of the decree was transferred by stipulation into these cases from another action in Merced county. The Merced county action had been commenced by several counties and cities for the purpose of collecting their shares of franchise tolls after the procedure had been first definitely outlined in the opinion of the Supreme Court in an appeal of one of these three consolidated actions originally commenced and prosecuted by Tulare county alone. County of Tulare v. City of Dinuba, 188 Cal. 664, 206 P. 983. In the Merced county case, the court awarded attorney fees to appellant Middlecoff, and ordered a portion deducted from the share of franchise tolls distributed to each claimant in that suit. This award of attorney’s fees and the amount thereof was there expressly consented to by each one of the claimants, except Tulare county, which, with the city of Dinuba and all the issues affecting them, had been previously dismissed from the Merced county suit and sent back to the Tulare county suits now here on appeal. These Tulare county suits were tried in Fresno county by stipulation. The court below, dealing with the question of attorney’s fees as a part of that corner of the litigation which had been carved out and sent to it from the Merced case, denied appellant Middlecoff’s motion to charge Tulare county’s share with a part of his attorney fees upon the ground that there was no legal warrant for such order.
Appellant argues for the application of the principle that where one party commences an action for the benefit of many and recovers a fund for all, the court in the exercise of its equity powers will award attorney fees out of the fund and thus indirectly charge every interested person with the attorney fees expended by the one party for the benefit of all. This general principle has been recognized in several other jurisdictions and seems to have been taken for granted in Fox v. Hale & Norcross S. M. Co., 108 Cal. 475, 41 P. 328, although it has several times been said that no attorney’s fees can thus be allowed in California in cases not provided for by statute. Los Angeles Trust, etc., Bank v. Ward, 197 Cal. 103, 239 P. 847; Sanger v. Ryan, 122 Cal. 52, 54 P. 522; Miller v. Kehoe, 107 Cal. 340, 40 P. 485.
If we concede the general principle contended for by appellant to be recognized in California, nevertheless there are several reasons why it is not applicable in the instant case. Tulare county expressly refused to employ appellant Middlecoff. It was at all times prosecuting actions of its own for the same purpose and joined the Merced county litigation at the last minute (January, 1924), only to be immediately dismissed and removed back to its own actions by stipulation (February, 1924). It was at all times represented by counsel of its own choice; its district attorneys and special attorneys employed and independently paid by it. There was some conflict of interest between Tulare county and some of the clients of Mr. Middlecoff, particularly the city of Dinuba. See County of Tulare v. City of Dinuba et al. (Cal.App.) 263 P. 249. Finally, it is quite doubtful whether the principles of the equitable rule contended for can be applied to any county of the state of California where the Political Code has made a complete scheme providing when and by whom the county shall be represented in its litigation. The scheme includes only the district attorneys, the Attorney General, and special counsel employed in a designated way in certain cases.
One has a right to employ his own attorney, and the equitable rule contended for has never been applied against one appearing by his own attorney. McCormick v. Elsea, 107 Va. 472, 59 S.E. 411; Stuart v. Hoffman & Co., 108 Va. 307, 61 S.E. 757; Dunlop v. McGehee’s Ex’r, 139 Va. 643, 124 S.E. 199.
The mere claim or belief on the part of Tulare county that its interests were adverse to some of the clients of appellant Middlecoff or to Mr. Middlecoff himself would be a sufficient reason, if any were required, for the county to employ its own independent counsel.
Appellant has cited no authority where the rule contended for has been applied in face of any one of the numerous objections raised by respondent under the facts of this case and mentioned above.
The judgment is affirmed.
We concur: NOURSE, J.; STURTEVANT, J.