This is an appeal on the original record by plaintiffs in error from a judgment foreclоsing a mortgage executed by them on certain real property of which they are the record owners. Further reference _ to the parties will be by their trial cоurt designation.
The plaintiff, American National Bank of Shawnee, instituted this action against these defendants, O. E. Pierson and Isabel Pierson, and others not parties to *428 this appeal, to recover judgment on certain promissory notes and to foreclоse the real estate mortgage security for the notes. The substance of defеndants’ answer to the petition was that they were not liable for the debt evidenced by the notes and mortgages since they had signed the instruments to accommodate the plaintiff and the real debtor. Their answer alleged that they had never had the deеd to the property covered by the mortgage; that they permitted title to the property to be conveyed to them of record as an accommodаtion to plaintiff and the actual debtor; that they had never been in possession or control of the premises; that they had never collected any of the rents; that they were not liable. Although the answer also contained a general denial, it аppears that the allegations of the pleading admit the execution of the notes and mortgage by the defendants.
After plaintiff filed a' reply controverting the allegations of the answer, it subsequently filed a waiver of its right to a personal judgment against these defendants and moved- for judgment on the pleadings foreclosing the mortgagе on the theory that the defendants’ answer constituted a disclaimer as to the property involved. The trial court construed the answer to be a disclaimer of any intеrest in the property and entered judgment against defendants foreclosing the mortgage “without any costs and attorney’s fee being taxed against them * *
Defendants first assert thаt the court erred in sustaining the motion for judgment on the pleadings because their answer raised issues of fact. We do not agree that the answer raised issues of fact as to the mortgage, defendants’ interest in the real property, or the right to foreсlose. Rather, the trial court correctly construed this answer to be a disclaimеr of any ownership by defendants of the real property covered by the mortgage. The affirmative allegations of the answer and the issues made therein relatе to these defendants’ liability on the notes; but this issue was eliminated from the action by plaintiff’s waiver of its right to a personal judgment. Plaintiff was still entitled to foreclose the mortgаge without seeking a personal judgment. Echols v. Reeburgh,
The major argument of defendants is direсted in support of their claim for an attorney’s fee. They contend the statute requires the allowance of a fee to them. 42 O.S.1951 § 176. We do not agree. The statute оnly authorizes a fee for the party “for whom judgment is rendered.” This judgment was rendered against these defendants and in favor of the mortgagee. These defendants do not cоme within the provisions of the statute. Snyder v. Tulsa Engineering & Const. Co., Okl.,
Judgment affirmed.
The Court acknowledges the aid of the Supreme Court Commission in the preparаtion of this opinion. After a tentative opin *429 ion was written by the Commission, the cause wаs assigned to a Justice of this Court. Thereafter, upon report and consideration in conference, the foregoing opinion was adopted by the Court.