Ardmore Hotel Co. v. J. B. Klein Iron & Foundry Co. , 104 Okla. 125 ( 1924 )

It is insisted that the court in the opinion in this case entirely overlooked a question decisive of the case; that is, that the jury should have been permitted to decide on the amount of attorneys' fees.

The statute deemed applicable to the question raised is set out in the opinion as follows:

"In an action brought to enforce any lien the party for whom judgment is rendered shall be entitled to recover a reasonable attorney's fee to be fixed by the court, which shall be taxed as costs in the action."

The case of Holland Banking Co. v. Dicks, 67 Okla. 228,170 P. 253, is cited in the petition for rehearing herein in support of the contention that the amount of attorney's fee should have been left to the jury.

The fifth paragraph of the syllabus in the Holland Banking Co. Case, supra, dealing with the attorney's fee, reads as follows:

"Where an action is brought upon a promissory note for the foreclosure of a lien upon collateral given to secure the payment of said note, an attorney's fee under section 3877, Rev. Laws 1910 (section 7482, Comp. Stat. 1921), may be awarded the Successful party in the action and taxed as costs, but the trial court is without authority to award such attorney's fee without evidence as to the value of such attorney's fee."

There is no contention, and there could be none, in view of the facts disclosed by the record, that the amount of attorney's fee involved herein was allowed by the court in the absence of evidence.

That part of the opinion in the Holland Banking Co. Case, supra, relied upon by plaintiff in error consists of a quotation from the case of Missouri Pacific Ry. Co. v. J.C. Merrill, 40 Kan. 404, 19 P. 793, which is as follows:

"The question of what was a reasonable attorney's fee was properly submitted to the jury. It is true the statute provides that the court shall allow a reasonable attorney's fee, which shall become a part of the judgment. The word 'court,' however, was doubtless used by the Legislature in the broader sense as including both judge and jury or judge alone, according as the court may be constituted when the trial occurs, What is a reasonable attorney's fee is a question of fact which should be submitted and determined the same as any other fact arising in the case."

The Missouri Pacific Ry. Co. Case, supra, did not involve the statute here in question (section 7482, supra). The case was based upon an entirely different statute, to wit, one having to do with actions against a railroad company for negligence.

We are clearly of the opinion that under the provisions of our statute (section 7482, supra), the court is authorized to allow reasonable costs to the lien holder and in fixing the amount thereof it may include therein a reasonable attorney's fee based upon evidence submitted in the cause, and that the word "court" used in the said statute will be construed to be synonymous with "judge," when such construction is necessary to carry into effect the obvious intent of the Legislature.

We think the rehearing should be denied.

By the Court: It is so ordered.