130 P.2d 996 | Okla. | 1942
This is an action in which the plaintiff, Norman Burkett, *522 sought to recover on 13 counts usurious interest charged, reserved, or collected on loans made by the defendants. The court held that all but five of the 13 counts were barred by the statute of limitations and entered judgment on the five counts for $46, after allowing a deduction of $22.50 which plaintiff owed the defendants.
The court allowed plaintiff an attorney's fee of $100. The defendants, George H. Miller and Edna Lind, doing business as Majestic Loan Company, have appealed from the judgment and raise two issues: (1) That the judgment is contrary to the evidence; (2) that the court erred in allowing an attorney's fee of $100.
The parties will be referred to by their trial court designation.
The first proposition cannot be sustained. The evidence substantially reveals that usurious interest was charged, reserved, and collected in a series of transactions, and the defendants' argument is addressed solely to the proposition that the court was bound to accept the testimony of the defendants' witnesses. The contention so made is untenable. The judgment is supported by the evidence.
15 O. S. 1941 § 268 provides for the allowance of a reasonable attorney's fee. This is not denied by the defendants. Two attorneys of the Tulsa Bar testified that in their opinion $100 was a reasonable attorney's fee. Defendants base their position on the statement of the trial court during the proceeding, but not incorporated in the journal entry, that he was of the opinion at one time that $50 would be a reasonable attorney's fee.
As we view the last above proposition, the finding of the trial court in its journal entry of judgment was that $100 was a reasonable attorney's fee. This amounted to the ultimate conclusion of the trial court in its judgment. It is the duty of the court to hear evidence and fix a reasonable attorney's fee for the prevailing party (McNeal v. Truesdell,
There is a motion for judgment on the supersedeas bond. Judgment is granted for $46 with interest and the $100 attorney's fee, together with the costs, against the United States Fidelity Guaranty Company, as surety on the supersedeas bond.
The judgment of the trial court is affirmed.
WELCH, C. J., and OSBORN, GIBSON, DAVISON, and ARNOLD, JJ., concur. CORN, V. C. J., and RILEY, BAYLESS, and HURST, JJ., absent. *523