Smith v. Kohn ( 1871 )

Opinion of the Court by

Judge Pryor:

When the action is founded on the written obligation of the defendant no verification by affidavit is necessary — Sec. 143, Civil Code. In this case by the obligation itself the defendant agrees to pay the attorneys’ fee, and although it was necessary to aver not only what a reasonable attorney’s fee was, but that appellee had paid it, still the writing being the basis of the action, and the only evidence required of the obligation to pay, no affidavit was necessary. The petition should have averred, in order to authorize a judgment by default, the payment of the attorney’s fee by the appellee and for the failure to make this averment the judgment allowing the attorney’s fee is reversed and cause remanded for further proceedings consistent with this opinion.