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Coburn v. Weed

Almon C. Coburn v. Orlando Weed

Coburn v. Weed, 12 Kan. 182 (1873)
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Court
Supreme Court of Kansas · State Highest Courts
Decided
July 15, 1873
Judges
Brewer
Citations
12 Kan. 182
Headnotes
1. Practice; Reviewing Final Judgment. An error in a final judgment of the district court is reviewable in this, although no motion to correct the error has been made in that court. 2. Attorney Pees; Right to Recover. It is an error to tax attorney’s fees in a foreclosure suit, unless the mortgagor has stipulated to pay them. 3. - Agreement; Pleading. An allegation that “fifty dollars is a reasonable attorney’s fee,” and that there is due on the note and mortgage a certain amount “besides attorney’s fees accruing in this action,” is not equivalent to an allegation of an agreement to pay such fees.
Summary
Error from Saline District Court. The only question in this case is as to right of a plaintiff to recover an attorney fee from the defendant in an action to foreclose a mortgage, when there is no contract or agreement by tbe defendant (mortgagor) to pay such fee. The district court, at the November Term 1872, gave judgment for the plaintiffs, including an attorney fee therein, and the defendants bring the case here on error.

Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.

Opinion of the Court — Brewer

Text extracted by OCR from a scanned original; check the original for exact wording.

The opinion of the court was delivered by Brewer, J.:

The action below was for the foreclosure of a mortgage, and the error complained of is the taxing of an attorney’s fee in the judgment. It is objected that the question should first have been raised by motion in the district court. It has been settled otherwise. (Lender v. Caldwell, 4 Kas., 339 .) The judgment was entered by default. The mortgage was not made a part of the petition, nor does it appear in the record, and there is no allegation of any contract or stipulation to pay attorney’s fees. Hence it was error to render any judgment for such fees. (Stover v. Johnnycake, 9 Kas., 367 .) The allegation in the petition, that “fifty dollars is a reasonable attorney’s fee for the foreclosure,” and “that there is now due and remaining unpaid on said note and mortgage $516.65, besides $50 attorney’s fees accruing in this action,” is no allegation of an agreement to pay fees.

The judgment of the district court will be modified by striking out the attorney fee of fifty dollars. The costs of this court will be taxed against Orlando Weed, the party who obtained judgment for the attorney fee.

All the Justices concurring.

How later courts describe this case

No later court has written an explanatory parenthetical about this case yet.

1875–1876: 11877–1878: 11889–1890: 11899–1900: 11903–1904: 11909–1910: 11915–1916: 118752026peak 1875 · 1

Relies on it most ⓘ

  1. Smith v. Mortgage & Debenture Co.101 F. 956 (5th Cir. 1900)
  2. Stanard v. Sampson Et Ux.1909 OK 13, 99 P. 796
  3. Tacha v. Chicago, Rock Island & Pacific Railway Co.155 P. 922 (Kan. 1916)
  4. Franklin Opera House Co. v. Armstrong133 F. 417 (1st Cir. 1904)
  5. Dorman v. Crozier14 Kan. 224 (1875)
  6. Earlywine v. Topeka, Salina & Western Railway Co.43 Kan. 746 (1890)

Most recent

  1. Tacha v. Chicago, Rock Island & Pacific Railway Co.155 P. 922 (Kan. 1916)
  2. Stanard v. Sampson Et Ux.1909 OK 13, 99 P. 796
  3. Franklin Opera House Co. v. Armstrong133 F. 417 (1st Cir. 1904)
  4. Smith v. Mortgage & Debenture Co.101 F. 956 (5th Cir. 1900)
  5. Earlywine v. Topeka, Salina & Western Railway Co.43 Kan. 746 (1890)
  6. Jennings v. McKay19 Kan. 120 (1877)

Citing references are not a citator: they show that a later opinion cites this case, not whether it followed, distinguished, or overruled it. Check negative history before relying on this case.

Authorities cited 2

DepthCaseCited by
Stover v. Johnnycake, 9 Kan. 367 (1872) 17
Lender v. Caldwell, 4 Kan. 339 (1868) 14

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