I concur in affirming the judgment. I do not, however, consider that the fact that there was a conflict of evidence upon the subject of compensation is a reason for its affirmance.
The court below was authorized to ascertain what services had been rendered by the plaintiff for the common benefit, including those of his counsel, and to determine the compensation which would be proper to allow him therefor. This is a matter, however, which the court is to determine in the exercise of its judicial discretion, and not necessarily in accordance with the testimony of witnesses. It may fix the compensation to be allowed, in accordance with the practice of the court and its own knowledge of the usual compensation for such services, without calling to its aid the views and experience of other attorneys, or it may ask their aid as expert witnesses for its enlightenment; yet, if it does call them to its assistance, it is not required to make its decision in accordance with their testimony, but may disregard their testimony entirely. Like determining the amount to be allowed for counsel fees in the foreclosure of a mortgage, or in a suit for divorce, the court is called upon to exercise a judicial discretion in consideration of all the circumstances in the individual case; and, even though the testimony of the witnesses whose opinion it may ask will sustain it in the amount which it *173allows, yet, if it should appear that it had abused the discretion intrusted to it, its action should be disregarded in this court as readily as an abuse of its discretion in any other respect. The action of a trial court in any matter depending upon its discretion is not conclusive, though it is approved by bystanders, or even by witnesses under oath. Judicial discretion—discernere per legem—is only the application of rules of law to the circumstances of the case in which the discretion is exercised, and whenever a question depends upon the exercise of this discretion it is as open to review as any other question. As error, however, is never to be presumed, the action of the court in the exercise of its discretion must be assumed to have been correct, and the burden is always upon the appellant to make it clearly appear that the court committed error; otherwise its action must be affirmed.
In the present case the court was called upon to determine the amount of labor that had been rendered by the plaintiff’s counsel for the common benefit of all parties to the action, and fixed the amount of compensation to be allowed therefor at the sum of $5,000. While this would appear to be an unusual compensation to be allowed in an ordinary action of partition, and while the amount estimated by the several witnesses as proper to be allowed varied from $2,000 to $15,000, it cannot be said, in view of the character of the action, the time occupied in its trial, the questions presented in the case, the value of the property involved, and the services shown to have been rendered by the plaintiff’s attorney, that the sum fixed by the court is so grossly disproportionate to its value as to constitute an abuse of its discretion.