Baker v. Farmers & Merchants State Bank

• Decision Date: 23 March 1926
• Docket Number: Case Number: 16300
• Citation: 1926 OK 265,245 P. 555,117 Okla. 93
• Parties: BAKER et al. v. FARMERS & MERCHANTS STATE BANK.
• Court: Oklahoma Supreme Court

1926 OK 265

245 P. 555

117 Okla. 93

BAKER et al. v. FARMERS & MERCHANTS STATE BANK.

Case Number: 16300

Supreme Court of Oklahoma

Decided: March 23, 1926

Syllabus

¶0 1. Appeal and Error--Sufficiency of Evidence--Mortgage Foreclosure.

A judgment reached in the foreclosure of a mortgage and to recover indebtedness secured by the mortgage, tried to the court, will not be disturbed upon appeal if the judgment is reasonably supported by the evidence.

2. Evidence--Foreign Judgment--Certified Transcript.

For a foreign judgment to be competent for use as evidence in the trial of a cause, a transcript of the judgment roll, of which the judgment is a part, must be certified, either as is required by section 905 of the Rev. Laws of the United States (U. S. Comp. St. 1913, sec. 1519), or certified as is required by section 637, C. O. S. 1921.

3. Costs -- Allowance of Attorneys Fee in Action to Enforce Lien--Validity of Statute.

Section 7482, C. O. S. 1921, is a valid statute and authorizes either party, or parties, to the action, who prevail, to recover a reasonable attorney's fee, to be fixed by the court, and to be taxed as costs in the action.

4. Judgment Sustained.

Record examined; held, sufficient to support judgment in favor of the plaintiff.

Commissioners' Opinion, Division No. 2.

Error from Superior Court, Okmulgee County; J. H. Swan, Judge.

Action by the Farmers & Merchants State Bank of Tonganoxie, Kan., against Lee Baker and Bertie A. Baker. Judgment for plaintiff and defendants appeal. Affirmed.

A. W. Whitefield, for plaintiffs in error.

William C. Alley, for defendant in error.

WILLIAMS, C.

¶1 The parties herein will be referred to as they appeared in the trial court.

¶2 This action was instituted by the plaintiff against the defendants to recover on a promissory note, and to foreclose a mortgage given to secure the same. Defendant in his answer admits the execution of the note and mortgage sued upon, but alleges that it was agreed by and between the defendant and plaintiff that the rents received from the building upon which the mortgage was given should be applied to the satisfaction of the mortgage and note sued upon herein; that $ 605 was so deposited with the plaintiff and the plaintiff failed to credit the defendants with such amount or any part thereof. Plaintiff replied, denying the allegations of defendant's answer. The defendant, after issues were joined and before trial, was given permission to amend his answer by interlineation so as to plead payment in full. A jury was waived and the issues submitted to the court. At the conclusion of the testimony, the Okmulgee Building & Loan Association filed a disclaimer. Judgment was rendered by the court for the plaintiff in the sum of $ 1,500, costs, and attorney's fees. Motion for new trial heard and overruled, and defendant brings error. The defendant urges many grounds for reversal in his petition in error. Only those, however, presented and argued in his brief will be considered.

¶3 The first assignment of error argued in plaintiff in error's brief is as follows:

"The learned trial court erred in rendering judgment against the plaintiffs in error and in favor of the defendant in error for $ 250 attorney's fees, or any other sum, for the reason that said note does not provide for attorney's fees; and in the absence of a contract therefor, attorney's fees cannot be collected in a suit upon a note, and to foreclose a mortgage."

¶4 In the case of C., R. I. & P. Ry. Co. v. Mashore, 21 Okla. 275, 69 Okla. 630, cited by the defendants, Judge Dunn had before him for consideration the construction of section 6915, Wilson's Rev. & Anno. St. of Oklahoma, which provided for the recovery of attorney's fees by the plaintiff in case of a recovery, and no provision for recovery by defendant in case he should prevail, and under those circumstances the section was held unconstitutional.

¶5 Section 3877, R. L. 1910, has been construed by this court in the case of Holland Banking Co. v. Dicks, 67 Okla. 228, 170 P. 253. After quoting the above section, which is as follows:

"In an action brought to enforce any lien the party for whom judgment is rendered shall be entitled to recover a reasonable attorney's fee, to be fixed by the court, which shall be taxed as costs in the action"

¶6 --the court said:

"It cannot be questioned that this action was not only to recover upon the note sued upon, but also to enforce a lien which the plaintiff claimed to have on the stock evidenced by the certificates of stock which had been deposited as collateral for the note, and that therefore the defendants having recovered in the action, an attorney's fee for him may properly be included in the cost."

¶7 The court further says, commenting upon the authorities cited by the defendant in error:

"* * * We do not think these authorities are in point, for the reason that the amount of attorney's fee in each of said cases is fixed at ten per cent. in the note. In short, the amount of attorney's fee in said cases was contracted for at a given sum, and hence evidence was not necessary to establish the value of the attorney's fee involved in said cases."

¶8 In the case of Ardmore Hotel Co. v. J. B. Klein Iron & Foundry Co., 104 Okla. 125, 230 P. 734, the statute was attacked on the ground that it was in conflict with article 5, sec. 59, of the Constitution of the state, and the 14th Amendment to the Constitution of the United States. The court in the body of the opinion set out a number of cases, cited by the counsel in support of the unconstitutionality of the statute, among which is the case of the Railway v. Mashore, supra, and says:

"The other cases cited in defendant's brief affirmed the Mashore Case, supra, and are not, we think, applicable to the statute now under consideration, which provides: 'The party for whom judgment is rendered shall be entitled to recover attorney's fees; ' and does not specify the plaintiff alone.

"It will be observed that the attorney's fees provided for in section 7482, supra, are not fixed and determined by the act, nor imposed strictly as a penalty--but rather in the nature of costs, of which the amount is to be determined by the court."

¶9 The court then closes its discussion of this question as follows:

"We conclude this statute, section 7482, is general in its nature and uniform in its operation, and does not violate section 59, article 5, of the Constitution, and therefore is not open to the constitutional objection urged."

¶10 To the same effect is Scott v. Iman et al., 74 Okla. 13, 176 P. 81; Hutchinson Lbr. Co. v. Scrivener et al., 91 Okla. 293, 217 P. 854. The last case on this question by our court is Keaton et al. v. Branch et al., 104 Okla. 287, 231 P. 289.

¶11 The second assignment of error urged by defendant is as follows:

"The learned trial court erred in not holding that while a bank might apply money on deposit toward the payment of any obligation due from the depositor to the bank, when this matter becomes an issue, then the burden is upon the bank to show that there was a valid claim due from the depositor to the bank, and it is error to shift the burden from the defendant, requiring the defendant to show that he did not owe the bank any sum or sums."

¶12 It will be observed that in this assignment of error the defendant admits the law to be, that where a bank holds various obligations of a defendant, and money is paid said...