Beneficial Life Ins. Co. v. Mason , 108 Utah 437 ( 1945 )

This is also an appeal on the judgment roll from only that portion of the judgment in favor of plaintiff and appellant's assignee, Rawl S. Rice, in which the trial court allowed only $50 as a reasonable attorney's fee, although there was uncontradicted testimony of a disinterested attorney to the effect that ten per cent of the amount found to be due, or the sum of $500, is a reasonable attorney's fee to be awarded.

With the exception of the plaintiff and its assignee, the same parties are involved in this case as those in the case of PearlB. Mason v. Wayne N. Mason et al., 108 Utah 428, 160 P.2d 730, decided this date. The note and mortgage foreclosed in this action were originally made and executed by the parents, now deceased, of the defendants on May 15, 1928, for $5000. Following the demise of the parents, a son, Wayne N. Mason, and his wife, Pearl B. Mason, on February 16, 1938, made and executed to the Beneficial Life Insurance Company the renewal note and mortgage sued upon in this action.

This case was tried and submitted to the court on the same date the Pearl B. Mason case, supra, was, and as in that case, the trial court made and entered extensive findings of fact, conclusions of law and decree of foreclosure in favor of the plaintiff's assignee, Rawl S. Rice, who is shown to have purchased the note, mortgage and cause of action from the Insurance Company after the commencement of this action. Notice of such purchase, the change of attorneys and that the action would be continued in the name of the original plaintiff, pursuant to our statute, was served and filed.

After finding all the material allegations of plaintiff's complaint true, the court concluded as a matter of law:

"That by reason of the defaults as found in these findings, the plaintiff, Beneficial Life Insurance Company, was entitled to and did pursuant to the terms of its note and mortgage, declare the entire principal and accrued interest immediately due, and that it was legally entitled to thereupon foreclose this mortgage."

However, in the course of its findings, after stating that at the trial an attorney testified in behalf of plaintiff that ten per cent of the amount found due is a reasonable attorney's fee, the trial court

"finds that $500.00 is not a reasonable attorney's fee"

and then inserted in pen and ink:

"The court specifically finds that but for the vindictiveness of Wayne N. Mason the matter could have and would have been settled completely for an attorney's fee of $50.00 and that under all of the attending circumstances the sum of $50.00 is a fair, just, reasonable and equitable amount to allow as and for attorney fee."

After a careful examination of the record before us, this case is disposed of by what we have said in the Pearl B. Mason case, supra. The case is therefore likewise remanded to the District Court with instructions to make and enter a finding as to what is a reasonable attorney's fee to be awarded 1-7 the plaintiff for the use and benefit of the attorneys for their services in the case. If the trial court is of the opinion that the record relative to attorney's fees in the case is unsatisfactory or insufficient, it is authorized to take additional evidence on this subject. The court then shall make and enter its finding as to what constitutes a reasonable attorney's fee in the premises and shall enter its conclusions and judgment in conformity with its finding; findings, conclusions and decree to be in harmony with this opinion. Costs to appellant.

McDONOUGH, J., concurs.