Gourley v. Williams

DEVEREUX, C. (after stating the facts as above). This case comes before us by petition in error and transcript, and therefore we can consider only such questions as arise on the record proper. Ballinger v. Von Weise, 32 Okla. 114, 121 Pac. 250. The first two errors assigned in the petition in error will be considered together, as they both raise the question whether on the face of this record there is error in the judgment in allowing an attorney’s fee of $300, as provided in the mortgage. In 2 Wiltsie on Mortgage Foreclosure, sec. 1003, it is said: “It is the general rule that a reasonable attorney’s fee for foreclosing a mortgage beyond the costs allowed by law may be contracted for in a mortgage, and the court will consider the amount stipulated for by the parties to be reasonable, unless it is extravagantly large and extortionate, so as to show that it was intended as a penalty to be held in terroremi over the mortgagor.” And the rule is laid down in almost the same words in 2 Jones on Mortgages, sec. 1606. *633 In Sprinstead v. Crawsfordsville State Bank, 231 U. S. 541, 34 Snp. Ct. 195, 58 L. Ed. 354, the question came before the Supreme Court on the point that the record showed that the Federal courts. The note in that case was below the jurisdictional amount, but it contained, a provision for an attorney’s fee, which, if added to the note -would confer jurisdiction. The court held that it did, because the agreement to pay the attorney’s fee created a legal obligation on the part of the payor, and this became a matter1 in controversy in -making up- .the jurisdictional amount. We think that, under all the authorities, the promise to pay an attorney’s fee in a mortgage, in case of foreclosure, is a part of the contract and not a penalty. Plaintiff in error contends that the provision in this mortgage in regard to attorney’s fees above set out, that in case of foreclosure, and as often as proceedings shall be taken to foreclose the same, the mortgagor shall pay to the mortgagee $300 as attorney’s fees, makes this a penalty in the instant case, and therefore void. We cannot agree with this contention. It still remains a contract, and, if the mortgagee should attempt to bring frequent suits and exact this fee on each one, it would be held against conscience to enforce it. Plaintiff in error, .by this argument, puts an extreme case of hardship which might arise under the contract, and asks this court for this reason to declare it void. In Monongahela Co. v. U. S. 216 U. S. 177, 30 Sup. Ct. 356, 54 L. Ed. 435, the court says: “Learned counsel for the defendant suggest some extreme cases showing how reckless and arbitrary might be the action of * * * officers. * * * It will be time enough to deal with such cases * * * when they arise. * * * Courts have rarely, if ever, felt themselves so bound by technical rules that they cannot find some remedy * * * for acts, whether done by government or by individual persons, that violated *634 * * * justice or were hostile to the fundamental privileges devised for the protection of” property. But that state of facts is not now before the court. The trial judge has allowed the fee of $300, according to the contract. There was no allegation in the answer that this amount was excessive, and we cannot say, as a matter of law, that it was. The next assignment of error is that the court erred in holding the petition stated a cause of action, and in overruling the demurrer thereto. We fail to see wherein the petition fails to state a cause of action. It alleges all the material facts necessary, and is attacked by a general demurrer. In Emmerson v. Bobkin, 26 Okla. 218, 109 Pac. 531, 29 L. R. A. (N. S.) 786, 138 Am. St. Rep. 953, it is held that a general demurrer to a petition should be overruled, if any of the statements of causes of action are good. See, also, deciding - the same point, Ardmore State Bank v. Mason, 30 Okla. 568, 120 Pac. 1080, 39 L. R. A. (N. S.) 292; Hurst v. Sawyer, 2 Okla. 470, 37 Pac. 817; City of Guthrie v. Harvey Lumber Co., 5 Okla. 774, 50 Pac. 84; Hanenkratt v. Hamil, 10 Okla. 219, 61 Pac. 1050; State ex rel. Roberts v. Indian Territory, etc., Co., 32 Okla. 607, 123 Pac. 166; Coody v. Coody, 39 Okla. 719, 136 Pac. 754. In Weber v. Dillon, 7 Okla. 568, 54 Pac. 894, it is held that it is only when the entire petition fails to state a cause of action that a general demurrer will lie. It is true that the petition sets out the note, which provides that it shall bear interest at 7 per cent., but, if not paid at maturity, it shall bear 10 per cent. It is clear, under the above authorities, that this question cannot be raised by a general demurrer. The above embraces all the assignments of error set out in the petition in error that we can 'consider under the transcript in this case, as they are all that arise on the face of the record. But plaintiff in error raises the question in his brief that the judgment is not supported by the pleadings, because it shows that *635 the 3 per ceht. above the 7 per cent, is a penalty, as shown by the petition and exhibit, and the journal entry shows that the court allowed it as a part of the judgment, and to this extent the judgment is excessive. We have set out the assignments of error, and by no possible construction can they be held to raise this question. It is true that, where error appears on the face of the record, no exception is necessary. Coffrey v. Overholzer, S Okla. 202, 57 Pac. 206; Goodwin v. Bickford, 20 Okla. 91, 93 Pac. 548, 129 Am. St. Rep. 729; Kellogg v. School District No. 10, 13 Okla. 285, 74 Pac. 110; Baker v. Hammett, 23 Okla. 480, 100 Pac. 1114; International Harvester Co. v. Cameron, 25 Okla. 256, 105 Pac. 189; Tribal Development Co. v. White, 28 Okla. 525, 114 Pac. 736. But none of these cases hold that allcgid error can be considered without a proper assignment of error in this court. In Tribal Development Co. v. White, 28 Okla. 525, on page 529, 114 Pac. 736, on page 737, the court say: “When the case is duly brought to this court on a transcript of the record, the error is then one appearing on the face of the record proper, and this court may review the same upon a proper assignment contained in the petition in error.” In Turner v. First Natl. Bank, 40 Okla. 498, 139 Pac. 703, it is held: “Where an assignment of error is so general as not to point out the real error or errors complained of, this court will not consider them, nor will it examine the record with regard thereto.” This has been repeatedly held by this court. See Willet v. Johnson, 13 Okla. 563, 76 Pac. 174; Johnson v. Johnson, 43 Okla. 582. There is no assignment of error in the petition in error raising the point attempted to be presented, and, following the above cases, it will not be considered. *636 Wc therefore, recommend that the judgment be affirmed. By the Court: It is so ordered.