Boyd v. Sumner

| Wis. | Dec 14, 1859

By the Court,

Paine, J.

We do not deem it necessary in this case, to decide whether the provisions in the $800 bond and mortgage, in relation to the payment of 24 per cent, in case of non-payment at the time provided, should be regarded ,as in the nature of a penalty, or ás a valid contract for interest. The twenty-four per cent, was allowed by the court below as interest. But there is nothing in the case that shows, even if this was an error, that the bank was aggrieved by it. It seems no proof at all was offered of the interest of the bank in the mortgaged premises, except what is furnished by its answer. And even if it is assumed that its interest is as therein set forth, there is nothing to show that the premises are not amply sufficient to pay off its incumbrance, after satisfying the judgment of the plaintiff as rendered. Sumner acquiesces in it, and the bank has no right to contest the question without showing that it is, or may be aggrieved by the judgment as it stands. For if the premises are still sufficient to pay the bank, it has not been aggrieved, and has no interest in the question, whether the 24 per cent should be considered a penalty or valid interest.

We think that part of the judgment, which disallows all solicitors’ fees over $25. and from which the plaintiff appealed, must be reversed.- There were several mortgages foreclosed in the suit, and the amount of solicitor’s fees stipulated to be paid in all of them, was $70. The court below thought no more than $25 could be allowed, because it was forbidden by chap. 200, Session Laws of 1859. But we think that chapter, as well as the section of the Revised Statutes, of which it is amendatory, refers only to such costs and fees as may be taxed by the authority of the statutes, independent of any stipulation of the parties upon the subject. It is well known that parties are obliged to pay attorneys more than these taxable costs in order to obtain their services, and from this has arisen the practice of stipulating in regard to it, in their agreements. And in Truesdell vs. Tallman, 3 Wis., 454, this court has already decided that such stipulations, when made in good faith and for reasonable amounts, should be enforced. There were a very large number of defendants in this suit, and several mortgages foreclosed; and, in view of these facts, it cannot be said that $70 would be an unrea-ble amount.

In such cases, where the parties by their agreement provide for a reasonable amount for the entire fees of a solicitor, it would probably be within the discretion of the court below to refuse to tax the amount fixed by statute. That part of the judgment appealed from by the bank is affirmed with costs That part appealed from by the plaintiff is reversed with costs.

And as the parties desired that final judgment might be entered here in consequence of the situation of the, premises, and the length of time before the next term of the circuit, although the late practice in this court has been different, the judgment may be entered here accordingly, though as a general rule,, we shall adhere to the practice of remanding to the circuit court for such further proceedings as may be necessary