Coburn v. Weed
Supreme Court of Kansas
Error from Saline District Court. The only question in this case is as to right of a plaintiff to recover an attorney fee from the defendant in an action to foreclose a mortgage, when there is no contract or agreement by tbe defendant (mortgagor) to pay such fee. The district court, at the November Term 1872, gave judgment for the plaintiffs, including an attorney fee therein, and the defendants bring the case here on error.
1Opinion of the Court
The opinion of the court was delivered by
Brewer, J.:
The action below was for the foreclosure of a mortgage, and the error complained of is the taxing of an attorney’s fee in the judgment. It is objected that the question should first have been raised by motion in the district court. It has been settled otherwise. (Lender v. Caldwell, 4 Kas., 339.) The judgment was entered by default. The mortgage was not made a part of the petition, nor does it appear in the record, and there is no allegation of any contract or stipulation to pay attorney’s fees. Hence it was error to render any judgment for…
2Cases cited2 opinions
- Stover v. JohnnycakeSupreme Court of Kansas · 1872
- Lender v. CaldwellSupreme Court of Kansas · 1868
3Cited by7 opinions
- Smith v. Mortgage & Debenture Co.Court of Appeals for the Fifth Circuit · 1900
- Stanard v. Sampson Et Ux.Supreme Court of Oklahoma · 1909
- Tacha v. Chicago, Rock Island & Pacific Railway Co.Supreme Court of Kansas · 1916
- Franklin Opera House Co. v. ArmstrongCourt of Appeals for the First Circuit · 1904
- Dorman v. CrozierSupreme Court of Kansas · 1875
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