Stover v. Johnnycake

ATTOBNEr’s Fees—When may be Taxed, and when not. It is error for the court, in an action to foreclose a mortgage, to render a judgment against tlie mortgagors, for the attorney’s fees of tlie mortgagee, where there is no contract or stipulation in the mortgage, or elsewhere, requiring the payment of attorney’s fees.

Error from. Wyandotte District Court. On the 3d of May 1871 Johnny calce commenced an action to foreclose a mortgage executed to and in his favor by Elizabeth Stover and her husband. At the October Term 1871 -of the district court, when said case was called for trial, the parties appeared and filed a written statement of facts, as follows: [Title.] “It is admitted and stipulated herein, that on the 6th day of October 1871 the defendants brought into court and tendered to plaintiff the full amount of principal and interest due plaintiff on the note and mortgage sued upon in the above entitled action, being $1,497, and that said •defendants paid the costs in full then due; and that on the :9th day of October 1871 the plaintiff accepted said amount of money, ($1,497,) in full payment of principal and interest of said note, but refused to dismiss this action on the ground that he claimed that defendants should pay an attorney fee to his (plaintiff’s) attorneys. The defendants object to the payment of such attorney fee, and the matter is submitted to the court for trial, a jury being waived by consent of parties.” The plaintiff’s petition demanded judgment of foreclosure, etc., to satisfy the amount of principal and interest due on said note, “and the costs of suit in accordance with the statute in such case made and provided.” The mortgage 'which was annexed to the petition, contained no stipulation or provision for the payment of any attorney fee in case of foreclosure. Upon the petition and the agreed statement of facts the court found “that the plaintiff is entitled to have and recover of the defendants an attorney fee in this action, which is here taxed at one hundred dollars,” and gave judgment accordingly. The defendants bring thejease here on error. This case presents the simple question: Can the court render a judgment against the mortgagors, in a suit to foreclose the mortgage, for the fees of the attorney of the mortgagee, when there is no contract in the mortgage authorizing the court so to do? If so, it must be by some statutory provision, or some well-established precedent. We find no statute on the subject until the one passed in January, 1859, which prohibits any court allowing over two dollars attorney’s fees in the foreclosure of a mortgage or trust deed, or the collection of the same. Comp. Laws, 722, § 3. This act was repealed by §2, ch. 119, Gen. Stat., 1868; but nowhere has there been any statute authorizing a court to allow any such fee. But it is claimed that § 399 of the code, as amended by §13, ch. 87, Laws of 1870, p. 175, authorizes the allowance by court of an attorney fee in all actions mentioned in that section. But does this section authorize a judgment for attorney’s fees where the mortgagor has entered into no con.tract to pay them? If it does, then it is unconstitutional. But the more rational construction of this statute is, that it relates to those cases where the defendant has contracted to stand good for such attorney fees. Can attorney’s fees come in under the head of “costs?” If so, what use to mention them separate‘from “ costs ? ” ■ But this question has been already settled by this court in the case of Swartzel v. Rogers, 3 Kas., 380, where it is declared that attorney’s fees are not included in the term “costs.” 10 Ohio, 378; 11 id., 417, 419. The term “costs,” must mean all such sums as are allowed to officers of court and witnesses, which are established by statute. “Attorney’s fees” must relate to such as are agreed to be paid in the mortgage, or trust deed, for there could not well arise a case where attorney’s fees would be legally taxable under the head of “ other lien or charge.” The term “expenses,” may relate to cases arising under the head of “other lien or charge.” But the decision in Swartzel v. Rogers precludes the idea of attorney’s fees being taxed either under the head of “costs” or “expenses.” The case for the foreclosure of a mortgage, stands upon the basis of all suits in court, so far as costs are concerned, as well as attorney’s fees—each party pays his own attorneys. A court might just as well tax the fees for plaintiffs’ attorney upon defendant in all actions on a book account, promissory note, or in slander, as to tax them in a suit to foreclose a mortgage without a contract to pay such fees. It is therefore submitted that the judgment for an attorney fee of $100 was an error, and ought to be reversed. Attorney’s fees are the subject of legislative regulations, the same as costs. Neither can be taxed except by virtue of statutory enactment. 22 111., 560; 13 Iowa, 537; 51 111., 253. The true intent of § 13, eh. 87, laws of 1870, is, that that attorney’s fees are to be taxed the same as costs in the actions referred to in said section. The words, “the court shall tax the costs, attorney’s fees, and expenses which may accrue in the action, * * * to be collected on the order of sale issued thereon,” precludes the idea of any other construction than this. It is discretionary with the court to fix the amount of the fee. If this view is correct then there is no necessity for any stipulation in the mortgage for attorney’s fees, any more than there is for a stipulation relative to costs. Both follow of course, as the direct result of the mortgagor’s failure to meet his obligation. Neither could be taxed, against him except from laches on .his part. The law prescribes that if the debtor in the case fails to meet his paper when due, and forces his creditor to his remedy in the courts, that he shall pay “costs, attorney’s fees, and expenses, which the court shall tax.” See Tholen v. Duffy, 7 Kas., 405. The plaintiffs in error have no cause of complaint. They failed to meet their express written obligation, and defendant in error was compelled to employ attorneys to institute proceedings to compel them to perform their contract. If judgment had been rendered for the full amount claimed below, could the defendants below escape the payment of an attorney fee? Does the tender of the amount due, and costs, except attorney fees, on the eve of judgment, make any difference as to the liability of the defendants below? If so, then the law sanctions an injustice, and permits a party to reap advantage by his own wrong.