Luzerne B. & S. Ass'n v. Peoples' Bank

Citations

• 142 Pa. 121
• 21 A. 806
• 1891 Pa. LEXIS 717

Syllabus

<p>(a) The counsel fees of the plaintiff in partition, as fixed at a sum certain by agreement with the defendant’s counsel, were taxed by the court and ordered to be paid out of the fund. After payment, the defendant, alleging that his counsel was without authority to make the agreement, at once moved that the order of allowance be revoked:</p> <p>1. In such case, the want of authority being shown, and the agreement disaffirmed by the defendant, it was not error to revoke the order of taxation of the counsel fees, and to proceed to a re-taxation thereof, under the act of April 27, 1864, P. L. 641, as though the agreement of counsel had not been made.</p> <p>2. To authorize the court to act upon an agreement of counsel fixing the plaintiff’s counsel fees, the assent of the parties to the partition proceedings should be clear and beyond dispute; and where the proceedings are adversary, the counsel fees are to be taxed as costs, not by the parties or by the attorney, but by the court.</p> <p>3. Under the said act of April 27, 1864, the court is bound to tax the allowance of counsel fees, simply as part of the costs, capable of calculation in view of professional services actually rendered, and not as a commission at a rate per cent upon the amount of the fund in court: Grubbs’ App., 82 Pa. 29.</p>