Opinion
No. 5380.
Argued September 9, 1965.
Decided December 7, 1965.
1. Counsel fees may not be recovered from the adverse party to a cause in the absence of statutory authorization, agreement between the parties, or some established exception.
2. The only statutory authority for the allowance of counsel fees is the provision (RSA 525:13) for the allowance of a nominal attorney fee in bills of costs for an appearance by a defendant.
3. The fact that petitions for declaratory judgments (RSA 490:22) possess certain attributes of equity proceedings does not authorize the allowance of counsel fees upon dismissal of such a petition by the plaintiff after settlement of the law actions which brought it about.
Petition for declaratory judgment by plaintiff to determine its obligations under an automobile liability policy issued to defendant Frederick J. Plante. On the day prior to the date set for hearing, plaintiff settled the underlying law actions and then moved for dismissal of its petition. Defendants objected to the dismissal until a hearing was held on their prayer for costs and attorney's fees in their answer to plaintiff's petition.
After hearing, the Trial Court (Leahy, C.J.) made the following order: "Request for dismissal of action by Plaintiff is granted. Costs allowed to defendants . . . Request for damages is denied reserving to the defendants all rights they may have at law against the plaintiff."
Defendants' exception to the denial of their prayer for reasonable attorneys' fees and all other exceptions were reserved and transferred.
Devine, Millimet, McDonough, Stahl Branch and E. Donald Dufresne (Mr. Dufresne orally), for the plaintiff.
Shute Engel and Francis J. Frasier (Mr. Frasier orally), for the defendants.
The law is well settled in New Hampshire that there can be no recovery of counsel fees from the adverse party to a cause in the absence of statutory authorization, agreement between the parties, or some established exception. Jacques v. Company, 78 N.H. 248, 250. This is in accord with the law of most jurisdictions. Shapiro v. Magaziner, 418 Pa. 278; Child v. Lincoln Enterprises, Inc., 51 Ill. App.2d 76; 20 Am. Jur. 2d, Costs, s. 73, pp. 59, 60.
RSA 525:13 provides that a nominal attorney fee shall be allowed in bills of costs for an appearance by a defendant. "There is no statute which in terms or by implication authorizes the Court to allow more than that sum." Jacques v. Company, supra; Murray v. Peabody, 106 N.H. 319, 329. There is no allegation in this case of an agreement between the parties to pay counsel fees nor does this case fall within the well-established exceptions where the authority to allow such fees has been recognized. Guay v. Association, 87 N.H. 216; Peterson v. Reilly, 105 N.H. 340, 353.
If by reason of the fact that actions for declaratory judgments (RSA 491:22) are called petitions and are commonly placed upon the equity docket they may be said to possess certain attributes of equity proceedings (American Employers Ins. Co. v. Liberi, 101 N.H. 480, 482), this fact would not in itself give the Court power to allow counsel fees. Drummond v. Drummond, 414 Pa. 548.
The cases relied on by the defendants in which the Trial Court refused to permit the dismissal of plaintiff's action involved cross actions by the defendant for recoupment, separate maintenance and an injunction. Johnson v. Association, 68 N.H. 437; Moylan v. Lamothe, 92 N.H. 299; Dorney v. Dorney, 98 N.H. 159; Sawtelle v. Tatone, 105 N.H. 398. They do not govern this case where as part of their answer seeking the dismissal of plaintiff's action, the defendants sought their costs, which the Court allowed, and counsel fees, which were not. On the record transferred to this court the Trial Court properly granted plaintiff's request to dismiss its petition for declaratory judgment after settlement of the law actions which brought it about.
Exceptions overruled.
All concurred.