Thomas Hansen & Son v. Their Creditors

49 La. Ann. 1731 | La. | 1897

The opinion of the court was delivered by

Miller, J.

This appeal is by the mortgage creditors placed on the-syndic’s account for their debts and attorney’s fees, from the judgment maintaining the opposition to the fees filed by the second mortgage creditor of the insolvents.

The acts of mortgage stipulate the mortgage is given to secure the debt, interest and the attorney’s fees of the mortgage creditor, and in the notes identified with the act there is the recital in case the notes are placed in the attorney’s hands for collection, the fees fixed at ten per cent, are to be paid. These fees are singly and in the aggregate below the amount necessary to give the court jurisdiction, of appeals. The motion to dismiss the appeals is on the ground that the fees are under two thousand dollars. The proceeds in the-hands of the syndic it is conceded exceed two thousand dollars, and that amount is the test of our jurisdiction.

It is claimed that no attorney’s fees should be allowed, because suits to foreclose the mortgages were not actually brought. But. besides the stipulation in the act for the payment of the fees óf the-attorney of the mortgage creditor, there is the agreement incorporated in the notes referred to and for all practical purposes part of the act that the fees shall be paid in case the notes are placed in the hands of the attorney for suit. The proof is that these notes after their maturity were placed in the attorney’s hands for suit, and foreclosures were deferred only because of the debtor’s appeal for indulgence. His cession of property afterward became necessary, the notes being still in the hands of the attorneys. In our opinion the fees were due and secured by the mortgage.

The amount of these fees was placed on the syndic’s account as accruing to the mortgage creditors as part of their debt, and the appeal from the judgment disallowing the fees by the creditors it is urged should be by the attorneys, one of whom is attorney for the syndic. The creditors were liable to the attorney for these "fees and we think had the right to appeal from the judgment.

It is therefore ordered, adjudged and decreed that the judgment of the lower court be avoided and reversed and that the oppositions to the fees of the attorneys of the mortgage creditors be dismissed, the costs to be paid by the opponent.