Mayer v. Stahr

The opinion of the Court was delivered by Bermudez, C. J. This is an action on a lost mortgage note for one thousand dollars, with eight per cent, interest since maturity and five per cent, attorney’s fees. The defendant, who is the drawer and mortgagor, having failed to answer, a default was entered against him. A party claiming to own the mortgaged property appeared in the suit, both by answer and petition of intervention, in which it is claimed : 1. That the property cannot be sold to satisfy the mortgage debt, unless security be given to guard against the appearance of the lost note. 2. That the attorney’s per centage cannot be demanded, because of an offer to pay the note in capital and interest, made previous to suit, provided the security was furnished. The intervenor calls his vendor in warranty who, answering, denies all liability and any right of interference by the intervenor. There was judgment rejecting the intervention and condemning the defendant to pay plaintiff’s claim, capital and interest and attorney’s fees, with costs of suit. From this judgment the intervenor has appealed. The plaintiff and appellee suggests want of jurisdiction in this Court over the matter at issue. The claim is made up of two distinct amounts, each constituting a capital of itself: first, that of the note, which is one thousand dollars, with the accruing conventional interest thereon; and, second, that of the attorney’s fees, which cannot be less than fifty dollars. The interest grows from the capital of the note and is an accessory thereto. The fees do not grow from that capital, are no interest upon it, but constitute a distinct debt, created by contract, contingent upon the happening of an event, the case of non-payment at maturity of the debt secured by mortgage. 26 An. 61; 14 An. 35. The demand at the date of the institution of the suit exceeded one thousand dollars in capital, exclusive of interest. That fact settles the question of jurisdiction adversely to appellee.