Watson

This is an appeal by Adolph Sutro from that portion of a judgment in partition proceedings that awards to the plaintiff in the action. an attorney’s fee of $5,000. In the trial of the action of partition the amount of the respective equitable interests of plaintiff and appellant Sutro to the realty involved in the litigation was warmly contested, and as to such matters the litigation resulted adversely to this appellant.

At the hearing, the report of the referees was acquiesced in by all the parties in interest, and the only contest that was made was as to the amount which should be allowed to plaintiff under section 796 of the Code of Civil Procedure for reasonable counsel fees expended by him for the common benefit. The court, after hearing the testimony of nineteen witnesses, fixed the fee at $5,000, and determined that defendant Sutro’s proportion was $4,828.25; and the propriety of this order is the sole question involved in this appeal. Section 796 of the Code of Civil Procedure provides that: “The costs of partition, including reasonable counsel fees expended by the plaintiff, or either of the defendants, for the common *171 benefit, fees of referees, and other…

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…