Mechanics & Traders' Insurance v. Lozano

The opinion of the Court was delivered by Bermudez, C. J. The defendant appeals from an order of seizure and sale. He charges that the claim of plaintiffs is not established by authentic evidence and that the decree allows ten per cent as attorney’s fees, one-half more than could be allowed. The plaintiffs claim damages for a frivolous appeal. The plaintiffs have submitted to tlie lower court, in support of their >rayer for executory process, a matured note of defendant in the stere»typed form to his own order and by him endorsed, and a duly certi [322] fled copy of an act, whereby the defendant secured the payment by mortgage on the property described in the act, and agreed to pay attorneys’ fees fixed at fi/ve per cent on the amount due, in case of suit to enforce payment. This showing was amply sufficient to justify the fiat of the district court. The contention is, however, that the plaintiffs sue on six notes of defendant, to the order of and endorsed by another party, which stipulate attorneys’fees at ten per cent, and that there is no authentic evidence that these notes were drawn by the defendant, that they were endorsed by the party to whom made payable and that they are secured by mortgage on the property described in the petition. The plaintiffs claim that the three thousand dollar note, already mentioned and which is secured by mortgage, was pledged to them by a debtor of theirs. They do not sue as owners of that note, but simply as pledgees thereof. By so doing they have exercised a recognized right. Tt was unnecessary for them to have made any averment as to the pledge, or as to their title to the note of $3000. They had authority to sue directly as the pledgor himself might have done, or they might have sued in their own names for his use as is frequently done. The Code is explicit on this subject. Tt provides that if the credit which has been given in pledge, becomes due before it is redeemed by the person pawning it, the creditor shall be justified in receiving the amount and in taking measures to recover it, subject to the obligation of accounting to the pledgor. R. C. C. 3170, (3137). In several instances the right of the creditor to sue has been expressly admitted. Bank of Lafayette vs. Bruff, 33 Ann. 626; Blouin vs. Liquidators, 30 Ann. 714; Ducane vs. McKenna, 28 Ann. 419; Succession of Dolhonde, 21 Ann. 3; also 7 Ann. 225; 8 N. S. 370. Taken as. a whole their petition may be considered as drawn in the latter form. The allegations touching the debt due plaintiffs by defendant and evidenced by the six notes which are not authentic and the annexing of those notes to the petition, were surplusage and cannot affect the rights of the plaintiffs. They do not propose to ask that the property be sold to pay the $3000, but only to pay them $2451 and interest which is due them as holders of the six notes; any surplus to remain to the credit of their debtor. [323] The district judge, however, erred iu allowing ten per cent for attorney’s fees when the act of mortgage'only allows five. The defendant to that extent had a right to complain, and his appeaL cab not he treated as frivolous. It is therefore ordered and adjudged that the decree appealed from he amended, so as to reduce the percentage allowed for attorney’s fees from ten to five per cent on the amount sued for, and that thus amended said decree he affirmed, appellees to pay costs of appeal.