Ruud Mfg. Co. v. McGean ( 1928 )

FULL TEXT.

THOMAS, J.

The same judgment may be entered in this court as was entered in the Court of Common Pleas with the exception relating to the attorney fee, on the holding of the Supreme Court of Ohio in the case of Matzinger et v. The Harvard Lumber Company, 115 OS. 555. The attorney fee will be refused. In that case the court in the third paragraph of the syllabus says:

"The provisions of Section 8322 GC., authorize the payment of an attorney fee only out of the fund realized for lien claimants, which fund is the sum applicable to the payment of mechanics' lien claims found to be valid."

The only basis upon which an attorney fee may be claimed, is where a fund was created and brought into court, arising from the sale of the property. There was no such fund in the instant case. The lienors who may have contemplated a participation in such fund, were represented by counsel whom they paid for their services. It can not be said,. therefore, th~t counsel, in whose behalf the fee in question is claimed, did anything in their behalf and who should be required to pay an additional fee, especially when no fund existed as contemplated by the statute. Much less must it be expected that the owner of the property should be required to pay such fee in addition to the claims and lienholders and the costs of suit.

,(Miclclleton, P. J. and Mauck, M., concur.)