Zafero P. Paterson, Appellant, v. the City of Eufaula, Alabama, Appellee, 330 F.2d 608 (5th Cir. 1964)

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US Court of Appeals for the Fifth Circuit - 330 F.2d 608 (5th Cir. 1964) April 14, 1964

George B. Azar, Montgomery, Ala. (Azar, Campbell & Azar, Montgomery Ala., of counsel), for appellant.

Archie I. Grubb, Sam A. LeMaistre, Eufaula, Ala., Fred S. Ball, Jr., Montgomery, Ala. (Grubb & LeMaistre, Eufaula, Ala., Ball & Ball, Montgomery, Ala., on the brief), for appellee.

Before TUTTLE, Chief Judge, WISDOM, Circuit Judge, and CARSWELL, District Judge.


This is an appeal by landowner in a condemnation proceeding, removed by her to the federal court, seeking to overturn the district court's judgment denying an attorney's fee as a part of the costs upon a voluntary dismissal of the condemnation suit by the appellee, City of Eufaula, Alabama.

There is no provision for the fixing of attorney's fees in litigation in the federal court, except as such fees are provided for by statute. The Alabama statute does authorize the payment of attorney's fees under certain circumstances in condemnation suits. However, by its terms it is plain that this statute requires that the condemning authorities have become liable for damages by reason of an award and the failure to pay the award within six months. Here, there was of course no award, since the City dismissed the condemnation proceedings before the award.

We do not, of course, pass on the question whether a cause of action exists under the laws of the state of Alabama in a plenary suit for damages occasioned by the conduct of the City of Eufaula. As pointed out by the trial court in its judgment, this is a matter not here dealt with.

The judgment of the trial court is affirmed.

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