The record here discloses that a partition suit was filed in September, 1932, by Helen Phifer Glass and her husband, A. Martin Glass, against J.A. and H.L. Phifer, as administrators of the estate of W.B. Phifer, that the Glasses were represented in said litigation by the appellees *Page 531 herein, that defendants filed their answer in due course, motions to dismiss and to strike were denied, and an order of reference was entered by the chancellor.
In April, 1934, Helen Phifer Glass and her husband were divorced. In October, 1934, Helen Phifer Glass and defendants in the partition suit both filed separate motions to dismiss that suit. In the same month, Appellees Layton and Gray filed a petition alleging that Helen Phifer Glass and defendants without their knowledge had entered into an agreement of settlement of the partition suit which made no provision for costs and charges which they had expended nor for attorneys' fees due them for conducting said litigation. The petition prayed that the chancellor stay the dismissal of the cause until the costs and charges including a reasonable attorneys' fee were paid.
In November, 1934, the chancellor decreed that the court retain jurisdiction of the cause for the purpose of making an inquiry as to the proper amount that should be allowed appellees for costs and attorneys' fees up to the time of their discharge. Helen Phifer Glass and defendants then secured a writ of prohibition from this Court seeking to restrain the chancellor from exercising further jurisdiction in the cause. We held that the chancellor had jurisdiction of the subject matter and the parties. State ex rel. Glass v. Sebring,117 Fla. 788, 158 So. 446. See also Glass, et al., v. Layton, etal., 121 Fla. 462, 164 So. 284, and our opinion herein filed April 22, 1937.
Helen Phifer Glass and defendants then appealed from the order of reference. We there held that it was within the province of the chancellor to refuse to dismiss until reasonable attorneys' fees had been secured to petitioners by those legally liable therefor. We further held that defendants were in no sense obligated or liable for the fees of *Page 532 plaintiff's counsel when no contractual relation was shown. It was further in effect held that the claim of appellees for attorneys' fees became an assumpsit demand which could be prosecuted in an action at law. Glass v. Layton, et al., opinion filed April 22, 1937, supra.
On petition for rehearing, the respective parties were permitted to file briefs on the question of whether or not appellees should be granted leave to apply to the circuit court for permission to present a bill in the nature of a bill of review seeking vacation of the order dismissing the defendants from the partition suit and for such further proceedings as may be according to law. This is the question with which we are now concerned.
The briefs have been submitted and in consideration of them, the whole controversy has again been reviewed. It appears that appellees were employed by Helen Phifer Glass and her husband to bring the partition suit, that it was prosecuted as authorized by law, Section 4994, et seq., Compiled General Laws of 1927, that Section 5001, Compiled General Laws of 1927, contemplates that judgment for the costs, including attorneys' fees, shall be imposed against every party interested in the subject matter of the partition whether complainant or respondent in proportion to their interest but not until the partition is completed.
In this case, the partition did not proceed to final judgment before the defendants were dismissed on motion of both parties. It is charged that the motion to dismiss was collusive. If that is true, a judgment for costs and attorneys' fees should not be defeated in this manner. It is shown that appellees were employed by the complainant and that up to the time of their discharge, they pressed the partition litigation in good faith relying on their contract with complainant. The cause was dismissed without their *Page 533 knowledge or consent and their discharge was for no fault whatever on their part. If counsel can be disposed of in this manner, then their claim for fees and expenses is nothing more than a pipe dream.
It is as much the duty of litigants to keep faith with counsel as for counsel to keep faith with litigants and when it comes to partition matters, the statute provides for attorneys' fees as part of the costs. It appears further that the orders of the court below dismissing defendants from the partition suit was made under misapprehension. Opinion filed April 22, 1937, in Glass, et al., v. Layton, et al., supra.
It is accordingly our view that our former judgment should be modified with directions to the chancellor to reinstate the cause and proceed to ascertain the costs, including a reasonable attorneys' fee, that were incurred by appellees up to the time they were discharged. If he find that the motion to dismiss was collusive, the entire amount imposed for costs and attorneys' fees shall be charged against all parties as contemplated by Section 5001, Compiled General Laws of 1927, but if he find that Helen Phifer Glass was solely responsible for the motion to dismiss, then such costs and fees shall be charged against her in like manner.
It is so ordered.
WHITFIELD, BUFORD and CHAPMAN, J. J., concur.
BROWN, J., dissents.
Justice THOMAS not participating as authorized by Section 4687, Compiled General Laws of 1927, and Rule 21-A of the Rules of this Court. *Page 534