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Euclid v. Vogelin

Supreme Court of Ohio
Feb 8, 1950
152 Ohio St. 538 (Ohio 1950)

Opinion

No. 31810

Decided February 8, 1950.

Municipal corporations — Suit to appropriate property dismissed — Allowable costs statutory — Section 3697, General Code — Attorney's fee or expenses of defendant, not authorized — Appeal from order retaxing costs — Prior order granting motion to retax costs, reviewable.

1. On an appeal from an order retaxing costs so as to include therein amounts for counsel fees and expenses, the party against whom such additional costs are adjudged may question the validity of a prior order, granting a motion to retax costs so as to include allowances for such fees and expenses therein but postponing a determination of the actual amounts to be retaxed until after a later hearing thereon.

2. Costs are allowed only by authority of statute.

3. In a proceeding for an appropriation of property, where a municipal corporation has filed suit for the assessment of compensation but dismissed such suit prior to trial, Section 3697, General Code, does not authorize inclusion in the costs of any amount for attorney's fee or expenses of the defendant.

CERTIFIED by the Court of Appeals for Cuyahoga county.

The plaintiff city, a municipal corporation, herein referred to as the city, commenced appropriation proceedings against lands of defendant Eugene E. Vogelin, herein referred to as defendant, by the adoption of a resolution of necessity on November 5, 1945. On July 29, 1946, the city filed a petition in the Common Pleas Court to assess compensation for the land to be appropriated.

On October 24, 1947, the defendant filed a motion to advance the cause for hearing. This motion was granted on October 29 and the cause was ordered advanced to the trial list for November 17, 1947.

On November 14, 1947, on application by the city, the cause was "dismissed without prejudice at plaintiff's costs, for which judgment was rendered."

On November 21, 1947, defendant filed a motion "for an order retaxing the costs herein * * * so as to include in such costs such counsel fees and other expenses as have been incurred by said defendant in the preparation for the trial of this action." Nothing in the motion indicated the amount of such fees and expenses which defendant was claiming should be included in the costs.

On April 15, 1948, the court made an order providing in part:

"This cause came on to be heard upon the motion of the defendant * * * for an order retaxing the costs herein, a judgment for which has been heretofore entered herein against the plaintiff, and * * * the court finds that said motion should be and the same is granted, and said costs are hereby ordered retaxed so as to include therein a reasonable attorney's fee to be paid to the attorney for said defendant, and such other proper expenses as were incurred by said defendant in the proceedings. It is further ordered that this matter be and the same is hereby referred for assignment to a trial room for an adjudication as to the amount of such fees and expenses properly to be allowed as costs herein adjudged against the plaintiff. Plaintiff excepts hereto."

On May 12, 1948, a motion to vacate and set aside the order of April 15 was filed by the city. On the same day, the court made an order reading in part:

"Motion of plaintiff for an order vacating and setting aside the order heretofore made granting motion of the defendant for an order retaxing the costs herein, is overruled. Plaintiff excepts. Partially heard and continued for further evidence."

On July 15, 1948, the court made an order reading in part:

"This cause came on to be heard pursuant to the previous order of this court whereby the motion of the defendant * * * to retax costs herein was granted, and the matter ordered set down for trial as to the amount or amounts to be included in such costs, and the court, having received and considered all of the evidence submitted * * * finds that said defendant incurred an expense of the reasonable value of $750 for counsel fees and for real estate appraisers of the reasonable value of $400 each and both of which sums should be included in the costs of this case, heretofore and now adjudged against the plaintiff, and that said sums should be payable directly to the persons who rendered the services on behalf of said defendant.

"It is therefore ordered and adjudged that there shall be included and taxed as costs in this case the sum of $750, payable to Arthur P. Gustafson, and the sum of $400, payable to Robert L. Free, and that judgment be and the same is hereby rendered against the plaintiff for said sums and for general and increased costs herein, in favor of the persons named and of said defendant * * *. Plaintiff excepts."

On July 20, 1948, the city filed notice of appeal in the Common Pleas Court.

On October 27, 1948, defendant filed a motion in the Court of Appeals to dismiss the appeal or to strike the assignment of errors filed. This motion was overruled. On April 8, 1949, the Court of Appeals affirmed the judgment of the Common Pleas Court.

The case is now before this court by reason of an order of the Court of Appeals on May 10, 1949, certifying its decision to be in conflict with the case of Village of Pleasant Ridge v. O'Meara, No. 268, First District Court of Appeals, decided May 17, 1915. It may be noted that the same conflict exists between the decision of the Court of Appeals in the instant case and that of the Court of Appeals of the First District in Board of Education of City of Cincinnati v. Rafalo. This court overruled a motion to certify in the latter case on March 2, 1949 (No. 31680).

Mr. Paul H. Torbet, city solicitor, for appellant.

Mr. Arthur P. Gustafson and Mr. Frank T. Cullitan, prosecuting attorney, for appellees.


In support of the judgment of affirmance of the Court of Appeals, defendant claims that that court erred in overruling defendant's motion to strike those of the city's assigned errors directed solely to the orders of April 15, 1948, and May 12, 1948, and in entertaining an appeal by the city from those orders, when no notice of appeal was filed by the city within 20 days after the entry of either of such orders.

Defendant's position is that the order of April 15, 1948, was a final order and that the city's motion of May 12, 1948, recognized it as such; and that, since no appeal was taken from the order of April 15, 1948, a reversal of the order of July 15, 1948, would leave the April 15 order, allowing the fees to be taxed as costs, still in effect.

In support of this contention, defendant relies upon the portion of Section 12223-2, General Code, reading in part:

"An order affecting a substantial right made in a special proceeding, or upon a summary application in an action after judgment, * * * is a final order which may be reviewed * * * as provided in this title." (Emphasis defendant's.)

Defendant argues that the order of April 15 represented performance by the court of a judicial function "allowing the costs" while the order of July 15 represented merely the performance of a ministerial duty taxing the costs. The difficulty with this argument is that, in its order of April 15, the court recognized that it still had a judicial function to perform before it could allow any amount of the costs which defendant sought. This judicial function was not performed until the order of July 15, when the court, for the first time, allowed any amount as costs pursuant to the defendant's motion to retax the costs.

Defendant refers to the cases of Lewis v. Hickok, 149 Ohio St. 253, 78 N.E.2d 569; Shuster v. N. Am. Mortgage Loan Co., 139 Ohio St. 315, 40 N.E.2d 130; and State, ex rel. K-W Ignition Co., v. Meals, 93 Ohio St. 391, 113 N.E. 258, which held that, where a decree finds the general equities in favor of a party and an accounting is ordered, such decree is a final order from which an appeal may be perfected "although a further provision is included to carry into effect the rights settled."

In each of those instances, an appeal was allowed from such a decree. None of those cases involved an appeal from any subsequent decree. The importance of this difference is indicated by the language of Read, J., in the court's opinion in Kelley v. Stanbery, 13 Ohio, 408, where it is said at page 422:

"But under the practice of our courts, a decree finding the general equities of the case for the purpose of reference, etc., has been held final to support an appeal, but for no other purpose. In case of a final decree, an appeal of course brings up the whole merits of the cause. Proceeding upon the principle that a party may question the finding of the general equity, he can appeal from a decree which may possibly dispose of the case without the expense of reference or further proceeding, or may await the final action of the court, and then appeal if it be desired."

On the preceding page of the opinion in that case it is said:

"A decree is final which disposes of the whole merits of the cause, and leaves nothing for further consideration of the court. A decree is interlocutory which finds the general equities, and the cause is retained for reference, feigned issue, or consideration, to ascertain some matter of fact or law, when, again, it comes under the consideration of the court for final disposition * * *. The confusion has sprung up from failing to observe the distinction between facts and things to be ascertained preparatory to final decree, and facts and things to be ascertained in execution of final decree."

See, also, Evans v. Dunn Witt, 26 Ohio St. 439, 445.

In the instant case, after the order of April 15, no one had a right to collect any amount on account of the additional costs which defendant sought to have retaxed. Such a right did not arise until the court, after hearing further evidence, determined the amount to be allowed for counsel fees and other expenses and made its order of July 15. Certain facts had to be found by the court before any amount of the costs which defendant sought to have taxed could be allowed. Until the court determined what the amount was that was to be allowed for counsel fees and expenses, it was wholly problematical, so far as the city was concerned, whether the order of April 15 would result in taxation of costs in an amount which would justify the city undertaking an appeal. In other words, until the order of July 15, the city was not really hurt. It is difficult to say, therefore, how the order of April 15 could be said to affect "a substantial right" of the city before the order of July 15 had been made.

On this procedural point, our conclusion is that, on an appeal from an order retaxing the costs so as to include therein amounts for reasonable counsel fees and expenses, the party against whom such additional costs are adjudged may question the validity of a prior order of the court, granting a motion to retax the costs so as to include allowances for such fees and expenses therein but postponing a determination of the actual amounts to be retaxed until after a later hearing thereon.

The principal question raised by this appeal is whether, where a municipal corporation has made an appropriation of property and filed suit for the assessment of compensation but dismissed such suit prior to trial, Section 3697, General Code, authorizes the inclusion in the costs of the case of a reasonable attorney's fee paid to the attorney for the defendant, together with other proper expenses incurred by the defendant.

Costs were unknown to the common law. They are authorized only by statute. Farrier v. Cairns, Exrx., 5 Ohio, 45, 47; Bell v. Bates, 3 Ohio, 380, 381. See, also, Cleveland, Columbus Cincinnati Rd. Co. v. Bartram, 11 Ohio St. 457, 467.

In the court's opinion by Summers, J., in State, ex rel. Commissioners of Franklin County, v. Guilbert, Aud., 77 Ohio St. 333, 83 N.E. 80, it is said on page 338:

"Costs, in the sense the word is generally used in this state, may be defined as being the statutory fees to which officers, witnesses, jurors and others are entitled for their services in an action or prosecution and which the statutes authorize to be taxed and included in the judgment or sentence. The word does not have a fixed legal signification. As originally used it meant an allowance to a party for expenses incurred in prosecuting or defending a suit. Costs did not necessarily cover all of the expenses and they were distinguishable from fees and disbursements. They are allowed only by authority of statute * * *."

See, also, State, ex rel. Beebe, v. Cowley, 116 Ohio St. 377, 381, 382, 156 N.E. 214.

The defendant must, therefore, establish a statutory right to have his attorney's fees or any other expenses of the defense included in the costs taxed.

Section 3697, General Code, reads:

"When a municipal corporation makes an appropriation of property, and fails to pay or take possession thereof, within six months after the assessment of compensation shall have been made, its right to make such appropriation on the terms of the assessment so made shall cease and determine, and lands so appropriated shall be relieved from all incumbrance on account of any of the proceedings in such case, and the judgment or order of the court directing such assessment to be paid shall cease to be of any effect, except as to the costs adjudged against the corporation. Upon motion of any defendant, such costs may be retaxed, and a reasonable attorney's fee paid to the attorney of such defendant, which, together with any other proper expenses incurred by the defendant, may be included in the costs." (Emphasis added.)

In order to prevail, defendant must rely upon the second sentence of the foregoing section. It will be noted that the costs which "may be retaxed" are "such costs." These necessarily refer to certain "costs adjudged against the corporation" and those costs are costs so adjudged on a "judgment or order * * * directing such assessment to be paid." There was no judgment or order in the instant case directing any assessment to be paid. The first sentence specifically provides for eliminating the effect of a judgment or order directing payment of an assessment "except as to the costs adjudged" therein. It does not refer to any other kind of judgment or costs adjudged in any other instance. The second sentence refers only to "such costs" which can, therefore, only be those adjudged on a judgment or order of a kind which never existed in the instant case.

Defendant argues that the second sentence of this statutory section is entirely independent from the first. As hereinbefore pointed out, its words indicate otherwise. An examination of the section, as originally enacted, fortifies this conclusion. At that time, the second sentence was a part of the first (96 Ohio Laws, 30). Apparently, the second sentence only became a separate sentence because of formal changes effected by the codification of 1910.

It may be noted that costs and expenses of the kind here allowed are provided for where a private corporation, in appropriation proceedings dismisses the proceedings before judgment. Section 11060, General Code. No similar provision has been made with respect to appropriation proceedings brought by municipal corporations. It is not in the province of this court to confer upon defendant by judicial construction a right not given to him by the words which the General Assembly has used.

In our opinion, the Court of Common Pleas had no authority to tax any amount in the costs on account of defendant's counsel fees and expenses in the instant case.

The judgment of the Court of Appeals is, therefore, reversed.

Judgment reversed.

MATTHIAS, HART, STEWART and TURNER, JJ., concur.

WEYGANDT, C.J., and ZIMMERMAN, J., concur in paragraphs one and two of the syllabus, but dissent from paragraph three of the syllabus and from the judgment.


concurs in paragraphs one and two of the syllabus but dissents from paragraph three and from the judgment on the ground that the last clause in the second sentence of Section 3697, General Code, does not contain the language " such costs" but in contrast significantly uses the broader phrase " the costs." (Italics supplied.)

The additional provision is an express grant of authority not arbitrarily limited by the first sentence.

ZIMMERMAN, J., concurs in the foregoing dissenting opinion.


Summaries of

Euclid v. Vogelin

Supreme Court of Ohio
Feb 8, 1950
152 Ohio St. 538 (Ohio 1950)
Case details for

Euclid v. Vogelin

Case Details

Full title:CITY OF EUCLID, APPELLANT v. VOGELIN ET AL., APPELLEES

Court:Supreme Court of Ohio

Date published: Feb 8, 1950

Citations

152 Ohio St. 538 (Ohio 1950)
90 N.E.2d 593

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