{ "id": 1737963, "name": "Guynn v. Guynn", "name_abbreviation": "Guynn v. Guynn", "decision_date": "1964-02-10", "docket_number": "5-3146", "first_page": "668", "last_page": "672", "citations": [ { "type": "official", "cite": "237 Ark. 668" }, { "type": "parallel", "cite": "375 S.W.2d 656" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "210 Ark. 1097", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 8726156 ], "weight": 4, "opinion_index": 0, "case_paths": [ "/ark/210/1097-01" ] }, { "cite": "236 Ark. 722", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1681336 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/236/0722-01" ] }, { "cite": "233 Ark. 518", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1691659 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/233/0518-01" ] }, { "cite": "224 Ark. 1058", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1646521 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/224/1058-01" ] }, { "cite": "213 Ark. 227", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1467085 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/ark/213/0227-01" ] }, { "cite": "1 S. W. 2d 26", "category": "reporters:state_regional", "reporter": "S.W.2d", "opinion_index": 0 }, { "cite": "175 Ark. 1012", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1403439 ], "opinion_index": 0, "case_paths": [ "/ark/175/1012-01" ] } ], "analysis": { "cardinality": 401, "char_count": 7286, "ocr_confidence": 0.507, "pagerank": { "raw": 5.0011153170616546e-08, "percentile": 0.3140173423238189 }, "sha256": "65d505a9e3de515579bce8694d5e4ee1ce693c1d6255888a56424d297576b82e", "simhash": "1:3ffde797050f9adb", "word_count": 1213 }, "last_updated": "2023-07-14T21:17:18.904164+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "Guynn v. Guynn." ], "opinions": [ { "text": "Frank Holt, Associate Justice.\nThis is a partition proceeding in which the Chancellor awarded appellee\u2019s attorney a fee, taxing it as part of the costs. On appeal appellants contend for reversal that this litigation is an adversary proceeding and, therefore, the court erred in assessing an attorney\u2019s fee as costs.\nThe appellant, George Guynn, Sr., the appellee, Beth Guynn, and Hugh Guynn upon the death of their father in 1947 were his sole heirs at law. Thus, as tenants in common, each owned an undivided one-third interest in the five-acre homestead. In August, 1961, Hugh and his wife conveyed their one-third interest to appellee. In September, 1961, appellee conveyed to appellant, George Guynn, Sr., an undivided one-sixth interest in these lands. In June, 1962, the appellant, George Guynn, Sr., was judicially declared incompetent and committed to the Arkansas State Hospital. On August 13, 1962, the appellee filed this action for partition of these lands making the appellants, George Guynn, Sr., and his wife, Mabel, defendants.\nAppellee alleged in her petition that said lands were not susceptible of division and should be sold and the proceeds divided as the appellants\u2019 and appellees\u2019 respective interests appeared; that appellee\u2019s deed conveying a one-sixth interest in the lands to the appellant, her brother, George, Sr., was secured through undue influence and should be canceled. A Guardian Ad Litem was appointed to defend the interest of appellant, George Guynn, Sr., then a patient at the Arkansas State Hospital. Answers and amended answers were filed by the appellants denying that the lands were not susceptible of division and, also, denying the appellee\u2019s contention as to their respective interests.\nUpon trial the appellee presented one witness to the effect that the lands were not susceptible of division and should be sold. The appellants presented no witness and their proof -was limited to cross-examination of appellee\u2019s witness. The appellee and appellants then stipulated that each owned an undivided one-half interest. Thus, the only issue remaining before the court was whether the lands were susceptible of division. The Clmncellor rendered his decree to the effect that appellants and appellee each owned a one-half undivided interest as stipulated and appointed commissioners to determine if the lands should be partitioned or sold. There were no objections by the appellants to this decree. The commissioners unanimously recommended in their report that the lands were not susceptible to an equitable division in kind and that the property should be sold. Thereupon the court entered an order granting the parties fifteen days from January 28, 1963 to file written objections to the report of the commissioners. On March 19, 1963 the court rendered its decree finding no objections had been filed to the commissioners\u2019 report; that the lands should be sold as recommended and that the matter of assessing attorneys\u2019 fees and court costs should be held in abeyance pending sale of the property.\nThe sale was duly perfected as required by statute. On May 15, 1963 the Chancellor rendered an order of distribution of the sale price of $6,100.00, dividing it equally between appellants and appellee after assessing the costs, including an allowance of $250.00 for attorney\u2019s fee to appellee\u2019s attorney, thus, making appellants responsible for $125.00 of this fee. The appellants filed no objections to any of these numerous proceedings nor to the final order of distribution except that part allowing appellee\u2019s attorney a fee to be assessed as costs.\nIn urging that this allowance of an attorney\u2019s fee as costs is error appellants rely upon Ark. Stat. Ann. \u00a7 31-1825 (Bepl. 1962) which is Act 386 of 1921. In construing this statute we have held that in a partition suit no attorney\u2019s fee can be allowed as costs if it is an adversary proceeding. Lewis v. Crawford, 175 Ark. 1012, 1 S. W. 2d 26; Warren v. Klappenbach, 213 Ark. 227, 209 S. W. 2d 468; Beasley v. Beasley, 224 Ark. 1058, 278 S. W. 2d 100; Reagan v. Rivers, 233 Ark. 518, 345 S. W. 2d 601; Hendrickson v. Duncan, 236 Ark. 722, 370 S. W. 2d 131. We have, also, held that in a partition suit where the proceedings are not of an adversary nature a reasonable attorney\u2019s fee for the plaintiff\u2019s attorney should be assessed and taxed by the court as costs against all the parties according to their respective interest. Ramey v. Bass, 210 Ark. 1097, 198 S. W. 2d 835. There we held that \u201ca contest over the payment of attorneys\u2019 fees would not of itself be sufficient to make the partition proceedings adversary.\u201d In the case at bar, after the stipulation, the allowance of the attorney\u2019s fee is the only real issue.\nWhere the services of the plaintiff\u2019s attorney in a partition suit result in a benefit to the whole subject matter of the litigation, or his services are accepted and acquiesced in by the parties benefiting therefrom, it is proper for the Chancellor to award an attorney\u2019s fee and tax such as costs in the action. Ramey v. Bass, supra. We think that appellants have benefited from the result reached in the sale of this land and, further, they acquiesced in the partition proceeding except as to the attorney\u2019s fee.\nThe appellants urge, however, that since a Guardian Ad Litem was appointed for George, Sr., and filed pleadings ill this cause, although they merely adopted the answers of the appellants, this made the proceeding adversary. We do not agree. The appointment of the Guardian Ad Litem and the pleadings filed by him in behalf of his incompetent ward met the minimum requirements of the statute. The Guardian Ad Litem, in requiring strict proof, was meeting the formalities required of him. In Ramey v. Bass, supra, where we approved an attorney\u2019s fee, one of the interested parties was, also, an incompetent.\nIn the case at bar the court properly awarded an attorney\u2019s fee to appellee\u2019s attorney to be taxed as costs and paid by appellants and appellee according to their respective interests.\nWe are not unmindful that Act 386 of 1921 is now amended by Act 518 of 1963. However, it is unnecessary to reach a discussion of this amendatory Act under the facts in the instant case.\nAffirmed.\n\u201cHereafter in all suits in any of the courts of this State for partition of lands when a judgment is rendered for partition, it shall he la%vful for the court rendering such judgment or decree to allow a reasonable fee to the attorney bringing such suit, which attorney\u2019s fee shall be taxed as part of the costs in said cause, and shall be paid pro rata as the other costs are paid according to the respective interests of the parties to said suit in said lands so partitioned.\u201d [Emphasis added.]\nOn September 5, 1963 the Chancellor, upon petition of appellants, rendered an order finding appellant, George Guynn, Sr., was discharged from the Arkansas State Hospital on February 22, 1963 as being \u201cmentally competent to manage his affairs.\u201d The Chancellor then authorized and directed the delivery of appellants\u2019 funds from the partition sale.", "type": "majority", "author": "Frank Holt, Associate Justice." } ], "attorneys": [ "House, Holmes, Butter c& Jewel, Paul K. Roberts, Philip E. Dixon, for appellant.", "Tom Haley, for appellee." ], "corrections": "", "head_matter": "Guynn v. Guynn.\n5-3146\n375 S. W. 2d 656\nOpinion delivered February 10, 1964.\n[Rehearing denied March 16, 1964.]\nHouse, Holmes, Butter c& Jewel, Paul K. Roberts, Philip E. Dixon, for appellant.\nTom Haley, for appellee." }, "file_name": "0668-01", "first_page_order": 690, "last_page_order": 694 }