Lovett v. Lovett , 105 Fla. 302 ( 1932 )

This case constitutes a very fair illustration of the confusion which inevitably follows an error in the application of principles which control the procedure of any litigation.

The suit was for the partition of a certain tract of land. The interested parties were definitely known and their respective interests ascertained, but the parties who were made defendants were permitted by answer to inject into the proceedings a prayer for the inclusion in the suit of another or different tract of land held by some of the same parties to the original petition but in different interests to those which they held in the tract described in the bill. In other words, the two tracts of land each formed the subject of a separate and distinct suit for its partition and should never have been joined in one proceeding.

However in the case of Lovett v. Lovett, 93 Fla. 611,112 South. Rep. 768, this Court approved seemingly the practice which was followed although the answer was held to be unavailing for failure of the defendant interposing it to obtain service upon certain minor codefendants or to make them parties. The decree was reversed but subject to the condition that the omitted defendants should not come in and voluntarily submit themselves to the court's jurisdiction.

The conditions were met in a fashion and the cause proceeded to a sale of part of the lands and a partition of the others and a complex and difficult accounting between the parties by way of benefits or profits some had received from the use of the land and the varying difference in value of the lands allotted to the parties respectively.

The difficulty arose when an effort was made to apply the provisions of Section 5001 C. G. L. 1927, which requires every "party in interest" whether complainant or defendant to "pay a share of the costs and charges, including attorney's fee of complainant's solicitor, arising from the suit for the partition or sale of the land, in proportion to his interest."

There is no rule or statute applicable to such apportionment of costs and charges in a case where different tracts of land, each independently the proper subject of a suit for partition, owned by different groups of people in varying interests as to each tract, are combined in one proceeding; one tract introduced into the suit by the bill and the other by an answer of one or more of the defendants. If the difficult, if not impossible, task is undertaken to apportion the costs and charges in proportion to the interests of the parties according to the rule prescribed in the majority opinion which necessitates interpolating into the Statute, Section 5001,supra, words neither expressly nor impliedly contained in it the method suggested by the majority opinion would seem to be both inaccurate and unsatisfactory. If a rule to be applied in such cases is to be improvised it seems to me that the chancellor could with greater facility, much less expense and more in harmony with the words of the statute allocate to each parcel of land that part of the total costs and charges including solicitor's fees which he may deem to be reasonable and the parties required to pay such portion of each allocation as their interest in the particular tract bears to the sum or portion of the total costs allocated to it. And in this case some allowance may be made to defendants for solicitor's fees for bringing into the suit the second and different tract of land.

TERRELL, J., concurs.