Wood & Bros. v. Winship Machine Co. , 83 Ala. 424 ( 1887 )

SOMERVILLE, J.

The action is founded on a written instrument, ascertaining the plaintiff’s demand, and the judgment is one by. default. The note obligates the maker to pay principal, interest, and ten per-cent, attorney's fees. This we construe to mean, ten per-cent, on the amount of the note, as attorney’s fees in any suit brought to enforce its collection. Such a demand will support a judgment by default, for the entire amount due, including the attorney’s fees, without the intervention of a jury. — Code, 1886, §2740; McKenzie v. Clanton, 33 Ala. 528; Burns v. Howard, 68 Ala. 352. It is not a case of recovery for a mere penalty stipulated to be paid by written promise, as in McPherson v. Robertson, 82 Ala. 459, where it was held error to render judgment by default without writ of inquiry by a jury to determine the amount of damages.

Affirmed.