Parkyn v. Travis

Rothrock, J. i. practice : commencement of action, I. It is urged by counsel for appellant that the action was commenced on the 1st day of April, 1878, when 'the original notice was delivered to the sheriff, and'there was no default in the payment of interest until thirty days from February 28th, and three days of grace, which would not terminate till April 2d. Conceding that, under the peculiar language contained in the notes and mortgage in this case,-the defendants were entitled to days of grace in the payment of interest — a point which we do not determine — still we think the action was not prematurely commenced. Section 2532 of the Code provides that the delivery of the original notice to the sheriff, with intent that it be served immediately, is a commencement of the action. This time is evidently fixed for the purpose of determining the rights of the parties under the statute of limitations. Section 2599 contains the general provision as to what is the commencement of an action. It provides that “actions shall be commenced by serving the defendant with a notice signed by the plaintiff or his attorney,” etc. The notice in this action was served April 3, 1878. This would be after the expiration of the days of grace, if defendants were entitled to that time. [439] 2 HEADING-demurrer. II. It is next urged that a notice of election should have been given before suit to foreclose for the whole amount can be maintained. Whether such notice was necessary we n0e(j no£ determine. It is sufficient to say that it is averred in the petition that plaintiff had elected that the whole, sum secured by the mortgage should be due. If an election were necessary this averment might have been vulnerable to a motion for a more specific statement, requiring plaintiff to set out particularly how he had made such election, or the averment of an election might have been denied by answer. But a demurrer will not lie for this reason. III. The notes and mortgage provided that defendants would pay a reasonable attorney’s fee if collected by an attorney. Complaint is made that the fee allowed is unreasonable. The record before us does not disclose upon what evidence the court made the allowance of the fee. In the absence of an affirmative showing that the fee allowed was unreasonable, we must presume that the finding of the court was correct. Affirmed.