McDonald v. Carpenter , 11 Okla. 115 ( 1901 )

Opinion of the court by

MoAtee, J.:

Error is urged in plaintiff in error’s brief, upon the grounds that, (1,) the verdict of the jury was for $60.80, without any finding that the claim was for work and labor, or that any part was for personal services, or what part was for the use of teams which the testimony showed had been emploj^ed in conjunction with the personal services, and (2), that the court rendered judgment for the full sum of $60.80 for work, labor and services; and fen dollars as costs for attorneys.

It is provided in chapter 51, sectional, of the Statutes of 1895, that:

“In all cases within the jurisdiction of a justice of the peace, where any action is brought by any laborer of any kind, clerk, servant, nurse, or other person, for compensation claimed to be due for personal services performed, if a recovery be had in such action, the plaintiff shall, in addition to the amount found due, be «entitled to recover as part of the costs, a judgment against the defendant for an attorney’s fee of not less than two dollars and fifty cents, and not more than fifteen dollars, to be fixed by the court, for the use and benefit of plaintiff’s attorney, together with costs * * * .”

And upon this statute the court was authorized to find that the amount of the verdict was for “work, labor and personal services,” and thereupon to render a judgment for an attorney’s fee in addition to the amount of the verdict. The verdict did not specify that the amount found to be due was for personal services. Nor does the statute require it. The statute provides that the attorney’s fee may be “fixed by the court,” and inasmuch as the court is not limited to fix an attorney’s fee when an attorney’s fee shall be named in the verdict, or when the verdict shall prescribe that it is found in consideration of personal services, the statute manifestly leaves that matter open to be determined by the court, from the pleadings and evidence in the case.

The bill of particulars declared for an amount claimed to be due for “work and labor”; the evidence tended to support the allegation, and the court was justified in including in the judgment the statement of fact that the amount for which it rendered judgment was for “work, labor and personal services.”

We have examined the instructions given to the jury, and find no error in them. The defendant in error was entitled to have the cause dismissed, because the points now contended for in the brief were not raised upon motion for n.ew trial, nor presented to the trial court for review at all.

The judgment of the court below will be affirmed.

Burford, C. J., who presided in the court below, not sitting; all the other Justices concurring.