Green v. State Industrial Accident Commission , 197 Or. 160 ( 1953 )

On Respondent’s Motion eor Attorneys’ Fees

Before Brand^*, Chief Justice, and Rossman, Latotirette^**, Warner and Tooze, Justices.

TOOZE, J.

This matter is before us upon plaintiff’s motion for the allowance of attorneys’ fees as an incident to the affirmance by this court of the judgment of the trial court. The appeal was taken by the defendant State Industrial Accident Commission. Our opinion affirming the judgment against defendant was handed down December 19,1952, but we did not include therein any allowance for attorneys’ fees in this court. We point out, however, that no request was made therefor until the instant motion was filed.

In all cases where attorney’s fees may or should be allowed by this court on appeal, the better practice is to make application therefor in the brief of the party entitled thereto. This is in the interests of a prompt and more efficient administration of the business of the court.

Section 102-1774, OCLA, as amended by cb 303, Oregon Laws, 1945, provides as follows:

“ * # * Appeals may be taken from tbe judgment of the circuit court as in other eases, and in cases of an appeal by the commission [State Industrial Accident Commission] from an adverse decision of the circuit court if the judgment of the circuit court is affirmed, the claimant shall be allowed attorneys [sic] fees, to be fixed by the court, in addition to the compensation.”

Under the express provisions of this statute, plaintiff is entitled to an allowance of attorneys’ fees on this appeal. The fee so allowed is payable out of the Industrial Accident Commission fund, and is in addition, and not chargeable, to the compensation awarded plaintiff.

We have before us the record in this case, and from an examination thereof, we find that the sum of $250 is a reasonable sum to be allowed the plaintiff as attorneys ’ fees on this appeal. Spicer v. Benefit Ass’n. of Ry. Emp., 142 Or 574, 603, 17 P2d 1107, 21 P2d 187, 90 ALR 517.

Plaintiff may, therefore, add this amount to the costs awarded him on appeal.