Stover v. Johnnycake

The opinion of the court was delivered by Valentine, J.: Only one question is presented in this case. Can the court, in an action to foreclose a mortgage, render a judgment against the mortgagors for the fees of the attorney of the mortgagee, when there is no contract or stipulation in the mortgage, or elsewhere, requiting the payment of attorney’s fees? This question must-be-answered in the negative. A judgment for attorney’s fees, or counsel’s fees, for services rendered in the same case, is never allowed in an action on contract, unless stipidated for, or unless expressly authorized by statute: Sedg. on Damages, 95, et seq., and cases there cited, (page 103, et seq., of 5th ed.;) [371] Swartzel v. Rogers, 3 Kas., 380. And - probably, such a?, judgment is never rendered in an action of tort: Fairbanks v. Witter, 18 Wis., 287. The following cases, found in' the.. Kansas Reports, though upon a kindred subject are-¡not applicable to this case, to wit: Lender v. Caldwell, 4. Kas., 339; Kurtz v. Sponable, 6 Kas., 395; Tholen v. Duffey, 7 Kas., 405. It is not claimed that the judgment in this case was rendered upon any stipulation for attorney’s fees; but it As-claimed that it was rendered -under authority given by the. statutes. The only statute upon which such claim.is or can. be made reads as follows: “Sec. 399. In actions to enforce a mortgage, deed of trust, or other lien or charge, a personal judgment or judgments shall be rendered for the amount or amounts due, as well to the plaintiff as other parties to the action having liens upon the mortgaged premises, by mortgage or otherwise, with interest thereon, and for the sale of the property charged and the application of the proceeds; or such application may be reserved for the further order of the court; and-the court shall tax the cosía, attorney’s eees, and expenses which may accrue.inthe action, and apportion the same among the parties according to their respective interests, to be collected on the order of sale or sales issued thereon,” etc. (Laws of 1870, page 175, § 13.) As we understand this statute it does not pretend to give attorney’s fees where they are not otherwise or elsewhere authorized by law. This statute, as we read it, gives to the party entitled to receive the same such costs, such attorney’s fees, and such expenses, and such only, as are otherwise and elsewhere authorized by law. The main object of this statute is to provide that these costs, attorney’s fees, and expenses may be taxed and apportioned among the parties according to their respective interests, and not to provide for taxing costs, attorney’s fees, and expenses, that would not otherwise be allowed. A proper reading of the statute wrould probably be as follows: The court may tax such costs, and such only, as may legally accrue in the action; it may tax such attorney’s fees, and such only, as may legally accrue in the action; [372] and may tax such expenses, and such only, as may legally accrue in the action; and these costs, attorney’s fees, and expenses, must each be apportioned according to the respective interests of the parties. These costs, attorney’s fees,,.and expenses are not only taxed and apportioned “ in actions to enforce mortgages,” but also in actions to “enforce” deeds of trust, and all other liens and charges. Now under this statute, as the expenses which accrue in the action may be taxed in every action, and in every case where attorney’s fees may be taxed, will it be claimed that a judgment may be rendered for the plaintiff’s personal expenses in attending court, or in hunting up lais witnesses, or in procuring other evidence, or in visiting his counsel to procure advice, etc. ? And if not, how can it be claimed that a judgment may be rendered by virtue of this statute alone for attorney’s fees? And as the statute simply authorized the taxing of the attorney’s fees which accrue in the action, without specifying what attorney’s fees, must they be the attorney’s fees of the plaintiff alone,,.or may they be the .attorney’s fees of the prevailing party? For instance: Suppose a person should sue one or more persons to foreclose a mortgage, or mechanic’s lien, or some “ other lien or charge,” and should fail in the suit: would the defendant, or any one of the defendants, be entitled to recover his attorney’s fees from the plaintiff? And further; this statute was passed after the execution of the note and mortgage sued on in this case.. Can the statute, then, even with the construction put upon it by the plaintiff below, apply to this note and mortgage, as well as to notas and mortgages executed after its passage? The judgment of the court below is reversed, and cause remanded with the order that judgment be rendered for the defendants below for their costs expended since the payment of the note, mortgage and costs, on October 9th, 1871, mentioned in the agreed statement of facts. All the Justices concurring.