51 So. 716 | Miss. | 1910
delivered tbe opinion of tbe court.
Tbe question presented by this record is a very interesting one, and has never been decided by this court. The question is this: Where a note is given for a sum less than $200, and
Tbe authorities have been collected in tbe brief .of tbe learned ■counsel for appellees, to which we refer., In tbe first volume •of tbe Encyclopedia of Pleading and Practice, at page 715, note 4, it is said: “Attorney’s fees, especially stipulated for in promissory notes, are not considered costs, but are calculable in determining tbe amount in controversy.” In Blankenship v. Wartelsky, 6 S. W. 143, tbe court says: “Attorney’s fees are not regulated by statute, and are not taxed as costs in this ■state. Attorney’s fees spring out of tbe contract, on account of tbe failure of tbe maker to perform it, are incidental to it, and arise from tbe express agreement of tbe parties, and are as much .■a part of tbe controversy, or a matter in dispute, as the debt itself. If tbe attorney’s fee was allowed by law it would then probably be held to be a part of tbe costs of suit, and not a ■subject of dispute or controversy.” In tbe case of Baxter v. Bates, 69 Ga. 587, tbe court said that, where a note sued on provides for tbe collection of attorney’s fees in addition to tbe principal in case of suit, and such sum and fee together make the amount beyond tbe jurisdictional limit, tbe jurisdiction •of tbe court is ousted.” In tbe case of Altgelt v. Harris (Tex.), 11 S. W. 857, a case directly in point, tbe court said: “A note
It follows, from these views, that the decree of the learned chancellor is correct. Affirmed.