25-21,108. Partition; proceedings; fees and costs; awarded, when; division.

If, in the proceedings in partition, judgment shall be entered directing partition, as provided in section 25-2179, the court shall, after partition or after the confirmation of the sale and the conveyance by the referee, determine a reasonable amount of attorney's fees to be awarded, which amount shall be taxed as costs in the proceedings. If the shares confirmed by such judgment and the existence of all encumbrances of which the plaintiff had actual or constructive notice were accurately pleaded in the original complaint of the plaintiff, such attorney's fees shall be awarded entirely to the attorney for the plaintiff; otherwise, the court shall order such fees for the attorneys to be divided among such of the attorneys of record in the proceedings as have filed pleadings upon which any of the findings in the judgment of partition are based. The court shall also determine and tax as costs a reasonable fee for the referee.

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Annotations

1. Award of attorney's fees

2. Division of fees

3. Miscellaneous

1. Award of attorney's fees

The shares confirmed by the judgment of the trial court were correctly pleaded by the plaintiff in the original and amended petitions; therefor, the fee of four thousand two hundred dollars awarded to plaintiff's attorney and taxed one-half to the plaintiff and one-half to the defendant was proper. Sweet v. Fairbairn, 208 Neb. 286, 303 N.W.2d 288 (1981).

Attorneys for the plaintiff in a partition action shall be entitled to all awarded fees where the shares conferred by the judgment and all encumbrances acted upon by plaintiff are accurately pleaded in the original petition. Lienemann v. Lienemann, 201 Neb. 458, 268 N.W.2d 108 (1978).

Where interests of parties in land are not in dispute, controversy over rents and claim of mortgagee to proceeds of sale does not bar allowance of attorney's fee. Lorenz v. Lorenz, 150 Neb. 20, 33 N.W.2d 162 (1948).

Where partition proceedings are for benefit of all parties in interest, an attorney's fee should be allowed even though there is a contest over whether property sold for fair value at partition sale. Wilcox v. Halligan, 141 Neb. 643, 4 N.W.2d 750 (1942).

Impracticability of partition does not of itself render proceedings adversary, so as to prevent allowance of fees. Smith v. Palmer, 91 Neb. 796, 137 N.W. 843 (1912).

Allowance of fees to defendant's counsel was erroneous. Branson v. Branson, 84 Neb. 288, 121 N.W. 109 (1909).

Attorney's fees for plaintiff should be allowed where proceedings are amicable. Johnson v. Emerick, 74 Neb. 303, 104 N.W. 169 (1905).

2. Division of fees

In a partition action fees shall be divided among the attorneys of record who shall have filed pleadings upon which any of the findings in a judgment of partition are based. Lienemann v. Lienemann, 201 Neb. 458, 268 N.W.2d 108 (1978).

Division of attorney's fees between attorneys rests in judicial discretion of trial court. Stoddard v. Montgomery, 169 Neb. 252, 98 N.W.2d 875 (1959).

3. Miscellaneous

An order fixing fees in a partition action is a final, appealable order. Evans v. Evans, 199 Neb. 480, 259 N.W.2d 925 (1977).

Attorney's fees and referee's fees are distinctly and separately treated in this section, the common denominator is that each shall be reasonable. Snook v. Snook, 184 Neb. 798, 172 N.W.2d 85 (1969).

Under former law, if proceedings were adversary, attorney's fees could not be allowed. Oliver v. Lansing, 57 Neb. 352, 77 N.W. 802 (1899).