Musser v. Crum , 48 Iowa 52 ( 1878 )

Adams, J.

1. pleading: fee. I. No answer or other pleading having been filed to the two first counts of the petition, there was no error in rendering judgment thereon. Code, § 2856. It is claimed, it is true, by the defendants, that there was in effect an answer to the first two counts. Their position, as we understand it, is this: That an attorney’s fee is provided in each note; that a note is but one contract; that a count upon a note, which calls for an attorney’s fee, should cover the claim for fee; that if the plaintiff undertakes to set up such claim in a separate count, he should have no advantage from such improper pleading; that properly there should be as many counts as notes, and no more; that the court should construe the petition as containing that number, and consider the averments as to attorney’s fee as belonging to the counts on the notes; that the answer, then, which puts in issue the averments as to the attorney’s fee, should be considered as putting in issue the counts upon the notes; and that it was, therefore, error to render judgment upon the counts upon the notes as for want of an answer.

The position is certainly ingenious, but we do not think it can be maintained. Our reasons will be given in considering the action of the court in denying a jury to assess the attorney’s fee.

^ostsT-1 : II. The correctness of the action of the court in denying a jury must depend upon whether the plaintiff was entitled to a judgment for attorney’s fee as a part of the judgment upon the notes, or merely as costs. If the attorney’s fee was recoverable as costs, a jury was properly .denied. The language of each note is : “We, or either of us, promise to pay to the order of E. Musser, at Iowa City, five thousand dollars, with interest thereon at ten per cent per annum, together with all attorney’s fees, and other costs and charges for the collection thereof, if the same is not paid paid when due, for value received. ” It will be observed that it is not expressly provided that the attorney’s fee shall be regarded as costs, but the term “other costs” would so imply. In opposition to this view, it is insisted that an attorney’s fee would be due from defendants if the notes were collected by an attorney without suit; that in such case it could not be regarded as costs in the sense of taxable costs, for costs cannot be taxed without suit. Whether, if the claim had been collected by an attorney without suit, the costs of collection could be recovered, we need not determine. Such question is not before us. The fee sought is for prosecuting the suit. There is a suit in which it may be taxed, and we think it is recoverable in that mode. It was held in Nelson v. Everett, 29 Iowa, 184, that a reasonable attorney’s fee may be recovered without any averment in the petition as to what is reasonable. One reason given is that “the plaintiff could not aver what a reasonable attorney’s fee would be, until the services were rendered.” The fee is earned in the progress of the case, as other taxable costs are earned. There is certainly much propriety in treating it as costs. We think that the action of the Circuit Court, in so treating it in this ease, was correct.

III. The defendants say that the judgment upon the notes was erroneously rendered, because, as they say, the case had been set down for trial upon a certain day, and that before that day arrived, and in tbe absence of defendants’ counsel, the case was called up and the judgment rendered. They claim, therefore, that they were entitled to have the judgment set aside. It is not, however, claimed that there was any defense to the notes, or that defendants were in any way prejudiced. Their application to set aside the judgment was, we think, properly refused.

Affirmed.