Solomon v. McLennan , 81 Iowa 406 ( 1890 )

Eotiieook, O. J.

The trial was had, and judgment entered, at the February term, 1888, of the district-court. Afterwards the judgment and costs were paid. On the fifteenth day of February, 1889,. the defendant made his application to have an attorney’s fee taxed. The excuse, for not making the application when the judgment was entered was that by ‘"some oversight there was no fee taxed for the defendant’s attorney.” We must presume that this oversight was not that of the court or the clerk. Of course the court would not, of its own motion, tax the fee, and the clerk could not tax it because he had no power to determine the amount. We have then the case of a party failing to make any claim for an attorney’s fee until nearly a year after judgment, and after the whole controversy had been closed by payment in full of the judgment and costs. It is true that it is provided, by section 2961 of the Code, that, in an action on an attachment bond, in addition to actual damages sustained, recovery may be had for “reasonable attorney’s fees, to be fixed by the court.” Now, if the party entitled to recover the fees by some oversight makes no claim for attorney’s fees until after payment of the judgment and costs, it would seem that no good reason can be given for permitting the litigation to be opened up afresh, to allow evidence to be introduced to enable the court to fix the amount of an attorney’s fee, and enter up another judgment in the case.

The judgment of the district court is aeeiemmd, ■’