Simmons v. Terrell

HOBBY, Judge.

The suit was on the note for $2000, with 12 per cent interest and 10 per cent attorney fees, less a payment of ■ $240 interest. This note, when presented to the administrator, was allowed for the principal and interest due, but rejected for the $228.80 attorney fees.

It is claimed by appellant that as the administrator allowed all of the claim save the 10 per cent attorney fees, this suit was to establish the claim for that sum only, and was therefore not within the jurisdiction of the court, and that the plea to the jurisdiction should have been sustained. We do not think there was error in overruling the plea to the jurisdiction. The rejection of the claim in part authorized the holder, if not satisfied with such rejection, to bring suit on the claim for the full amount, which was a sum within the court’s jurisdiction. Gibson v. Hale, 57 Texas, 406. This disposes of the first error assigned.

The remaining assignments relate to the conclusion of law found by the court, which was to the effect that the resort to the Probate Court for the collection of the claim, by procuring the allowance by the administrator and approval by the county judge, which must have followed in order to collect the claim, was such a suit as was contemplated by the parties and covered the terms of the contract of deceased, as contained in the note, and plaintiff was entitled to the allowance of 10 per cent attorney fees by the administrator, and upon his refusal to allow the same he could bring suit in the District Court for the amount of the note, including such fees, and to enforce the deed of trust.

It is contended by the appellant that the proceeding required of a creditor by our probate laws, in having his claim against an estate allowed by the administrator and approved by the Probate Court, does not come within the most comprehensive definition of a suit. It is also urged that a civil suit in the District and County Courts must be commenced by petition filed, etc. Although the presentation of the claim to appellant, may not have been a suit within the technical meaning of that term, or as defined by the statute, still it was a resort to a judicial tribunal (rendered necessary by the death of Prendergast and administration on his. éstate) to enforce a demand. The collection of the appellee^ claim by due process of law, as provided and required by articles 2015, 2018,2020, 2022, 2024, 2025, 2026 of the Revised Statutes, through the Probate-Court would require as much the services of an attorney as would the enforcement of a demand against an individual by the filing of a petition in an ordinary suit. The language used in the note, and which provided for the payment of 10 per cent attorney fees additional in case of suit after maturity to enforce collection, we do not think should be-restricted to a suit in equity or an action at law. By this language we-think the parties contemplated that such fees should become payable if' in order to collect the debt the services of an attorney become necessary to apply to a court having jurisdiction of the subject matter to secure-the payment of the claim. In this case it appears from the record that, an attorney was employed for this purpose. We think there is no error-in the judgment and that it should be affirmed.

Affirmed-

Adopted December 3, 1889.