164 N.W. 270 | S.D. | 1917
This action is brought for the purpose of foreclosing a mortgage-on a -tract of land in Meade county. Decree of foreclosure was entered by the trial court, and from such decree defendants appeal.
“The attorney fee in no case shall exceed the sum of $25, unless the court shall, by order, allow an additional sum, when issue has been joined in such action.”
Neither of the defendants answered in this case, and therefore they claim that no issue was joined, and that the court had no authority to allow more than $25 as attorney’s fee. It does not follow tha-t, because no answer was filed, no issue was joined. No issue of fact was joined, but there was an issue of law. Defendants demurred to the original complaint, the demurrer was sustained, and an amended complaint was filed. Defendants again demurred, but this demurrer was overruled, and from the order overruling the same defendants appealed to this court. Truth v. Bolt, supra. An issue of law is as much an “issue,” as that term is used in section 413, as an issue of fact, and the court has the same authority to allow an attorney’s fee in excess of $25, where issue has been joined upon a question of law, as where the issue was one of fact. But in fixing the amount of the attorney’s fee that may be taxed by the trial court, that court must take into consideration only the services that are performed in that court. Provision is made for the allowance of costs in this court, but the costs so allowed are taxed by this court, and are not to be considered by. the trial court when taxing costs in that court. With the services rendered in this court excluded from' consideration,