The opinion of the court was delivered by
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 such fees. (Stover v. Johnnycake, 9 Kas., 367.) The allegation in the petition, that “fifty dollars is a reasonable attorney’s fee for the foreclosure,” and “that there is now due and remaining unpaid on said note and mortgage $516.65, besides $50 attorney’s fees accruing in this action,” is no allegation of an agreement to pay fees.
The judgment of the district court will be modified by striking out the attorney fee of fifty dollars. The costs of this court will be taxed against Orlando Weed, the party who obtained judgment for the attorney fee.