13 Haw. 634 | Haw. | 1901
OPINION OF THE COURT BY
A decree was entered by the Circuit Judge1 in this cause as follows:
“This cause came on for hearing on this 6th day of August, A. D. 1901, before the Plonorable George D. Gear, Second*635 Judge of the Circuit Court of the Eirst Judicial Circuit of the Territory of Hawaii, at Chambers, Messrs. Hatch & Sillimau appearing on behalf of the said plaintiff Charles S. Desky, and Messrs. Kinney, Ballou & McClanahan appearing on behalf of the said defendant The Orpheum Company, Limited, and the court having heard the evidence adduced and being fully advised in the premises, and it appearing to' the court that there is now due and owing to the plaintiff by the said defendant upon the several notes and the mortgage securing the same as set out and referred to in the plaintiff’s complaint on file herein the sum of $8,449.91, and it further appearing that in default of the payment of said sum by the defendant to1 the plaintiff herein the plaintiff is entitled to a foreclosure of said mortgage and a sale of the premises therein described and is entitled to have the proceeds of such sale applied to the payment of said notes and the debt secured by said mortgage.
“Now Therefore It Is Ordered, Adjudged and Decreed that the said defendant The Orpheum Company, Limited, pay ix> the plaintiff herein the said sum of eight thousand four hundred and forty-nine dollars and ninety-one cents, together with the costs of this suit taxed at the sum of sixteen ($16.00) dollars and the sum of five hundred dollars attorney’s fees, as provided for in said mortgage, and auctioneer fee of $250. and in default of the payment of said sums by the said defendant, it is ordered, adjudged and decreed that the premises described in said mortgage, and hereinbelow described, be sold at public auction by James E. Morgan on Saturday, the 24th day of August, A. D. 1901, at 12 o’clock noon to the highest bidder for cash, and out of the moneys arising from such sale the plaintiff herein shall retain the sum of Thirty Thousand Eive Hundred Sixty-two and 41-100 dollars due upon said promissory notes and secured by said mortgage, together with the costs of this suit taxed at Sixteen Dollars, and Eive Hundred Dollars attorney’s fees, and the expense of such sale, rendering the surplus, if any, 1» the said defendant, The Orpheum Company, Limited, its successors or assigns. The said premises as set out in said mortgage and hereby ordered to be sold as aforesaid are described by metes and bounds. (Here follows the description by metes and bounds.)
“Said premises being subject, however, to a certain mortgage given by the said plaintiff Charles S. Desky to the Hawaiian*636 Evangelical Association in the sum of Fifteen Thousand Eive Hundred Dollars bearing interest at the rate of seven per cent per annum, payable semi-annually and due and payable in five yearn from the 8th day of May, A. D. 1899, and recorded in the office of the Registrar* of Conveyances for the Territory of Hawaii on the 1st day of May, A. D. 1899, in Liber 187, on pages 4-98-500.
“And it is further ordered, adjudged and decreed that the said defendant, the Orpheum Company, Limited, from thenceforth and for ever do stand absolutely debarred and foreclosed of and from all right, title, interest and equity of redemption of, in and to the said mortgaged premises.”
Erom this decree the defendant appealed to this Court. No transcript of the evidence is presented and the only contention made by the defendant is that the attorney’s fee of $500. allowed the attorneys of the mortgagee is “excessive and unreasonable.” The mortgage foreclosed provided that in case of default in the payment of the notes, therein described, the mortgagee might proceed to foreclose the mortgage “and out of the money arising from such sale or sales the mortgagee or his legal representatives, shall be entitled to retain the sums thus secured by this mortgage, whether then due or thereafter payable, including all costs, charges or expenses incurred or sustained by him or them by reason of any default in the performance or observance of the covenants and conditions of this mortgage, and an attorney’s fee, rendering the surplus, if any, to the mortgagors, its successors and assigns.” Tailing into consideration the amount of property involved and the responsibility imposed on the attorneys for the plaintiff in the proceedings we cannot say that this allowance is unreasonable or excessive. If this suit had been an action in assumpsit the statutory attorney’s fee would have been more than the amount allowed by the judge in this case.
The date fixed for the sale in the decree having passed it will be necessary for the Circuit Judge to direct sale at another time.
The decree appealed from will be affirmed except as to the date of sale therein named, and the cause will be remanded to
