Gundersen v. Village of Bingham Farms , 1 Mich. App. 647 ( 1965 )

1 Mich. App. 647 (1965) 137 N.W.2d 763

GUNDERSEN
v.
VILLAGE OF BINGHAM FARMS.

Docket No. 279.

Michigan Court of Appeals.

Decided November 15, 1965.

Dell & Shantz (Harry Dell, of counsel), for plaintiffs.

Howlett, Hartman & Beier (Dean G. Beier, of counsel), for defendant.

QUINN, P.J.

This appeal is from the circuit court's allowance of an attorney fee of $1,500 and expert witnesses' preparation fees of $400. These items were part of the costs taxed by plaintiffs after their successful appeal to the Supreme Court.^[1] Proper objection was made to taxation by defendant.

The power to tax costs is wholly statutory. Kuberski v. Panfil (1936), 275 Mich. 495. Chapter 24 of PA 1961, No 236 (CLS 1961, § 600.2401 et seq. [Stat Ann 1962 Rev § 27A.2401 et seq.]) is the statutory authority for costs. Section 2401 provides in part, "Except as otherwise provided by statute, the Supreme Court shall by rule regulate the taxation of costs." GCR 1963, 526 is the Supreme Court rule on costs; it does not provide for attorney fees. No other section of chapter 24 supra authorizes an attorney fee as here involved. The trial court indicated that the attorney fee was allowed because the case was a chancery matter. No statute or rule is cited to support its position, and if reliance is placed on the general powers of a court in chancery, some showing of inequitable result is required to justify the award. Merkel v. Long (1965), 375 Mich. 214. There is no such showing here. The attorney fee was improperly awarded.

With respect to allowance of costs to an expert witness for preparation, section 2164 of Act No 236 supra controls. The language of this section gives a trial court discretion in awarding such costs. Although State Highway Commissioner v. Rowe (1964), 372 Mich. 341, deals with a condemnation statute and not section 2164, the language of the opinion clearly indicates the reason for allowing costs for preparation by experts. It is applicable to this case. Department of Conservation v. Conner (1947), 316 Mich. 565, relied on by defendant is not controlling. As read by this Court, that case merely holds that expenses incurred in preparation by expert witnesses for trial are not embraced within the terms of just compensation in a condemnation proceeding. The allowance of costs for preparation by expert witnesses was proper.

The trial court is reversed on the allowance of attorney fee and affirmed on the allowance of expert witness preparation fees. Neither party having prevailed, no costs are allowed.

McGREGOR and WATTS, JJ., concurred.

NOTES

[1] Gundersen v. Village of Bingham Farms (1964), 372 Mich. 352.