Bankers' Iowa State Bank v. Jordan

• Citation: 111 Iowa 324,82 N.W. 779
• Parties: BANKERS' IOWA STATE BANK ET AL. v. JORDAN ET AL. (DAVEY ET AL., INTERVENERS).
• Decision Date: 11 May 1900
• Court: United States State Supreme Court of Iowa

111 Iowa 324

82 N.W. 779

BANKERS' IOWA STATE BANK ET AL.

v.JORDAN ET AL. (DAVEY ET AL., INTERVENERS).

Supreme Court of Iowa.

May 11, 1900.

Appeal from district court, Jasper county; A. R. Dewey, Judge.

Plaintiffs brought action against defendants Jordan, R. A. Scott, assignee, and others, upon five promissory notes, each of which was declared upon in a separate count of the petition. Afterwards Davey and others, intervened, alleging they were the owners of the notes sued upon, subject to the claim of plaintiffs, who, it was averred, held such paer as collateral security only. Subsequently judgment was rendered in plaintiffs' favor for the amount due on the notes, with an attorney's fee of $183.40, the latter amount being made up by computing the per cent. allowed by law upon each note separately. Thereafter a motion was filed by interveners to retax costs so far as attorney's fees were concerned, because the amount so allowed was excessive. The court held, on this motion, that in the computation of attorney's fees plaintiffs were entitled to the per cent. provided by law calculated upon each note separately, they having been given at different times, and being payable at different dates. The court also held the “return day,” as the phrase is used in this statute, to be the second day of the term for which the action was brought. The judgment was rendered in August, 1897. Interveners and the assignee appeal from the holding that the attorney's fee should be taxed separately on each note, and plaintiffs appeal from that part of the order fixing the return day. Interveners and the assignee will be recognized as appellants. Affirmed.H. S. Winslow and W. O. McElroy, for appellants.

Earl & Prouty, for appellees.

WATERMAN, J.

The motion to retax costs was made at the term following that at which the judgment was rendered, but notice of it was not given plaintiffs until July, 1898. Appellees insist that the motion was too late; that the costs which the court is authorized to retax on motion are only those which are provided for in section 3862, Code, and which are to be assessed in the first instance by the clerk. If it be true that only the costs referred to in this section can be retaxed on motion, it does not follow that appellees are right in the position taken, for the section, after mentioning certain items which the clerk is to tax, concludes as follows: “And any further sum for any other matter which the court may have awarded as costs in the progress of the action, or may allow.” This would include an attorney's fee which had been fixed by the court, for the clerk taxes these as well as other costs, although the amount is determined by the court. In an action on a written contract the court may fix the attorney's fees without taking evidence. Cook v. Gilchrist, 82 Iowa, 277, 48 N. W. 84. In such case no element of judgment or discretion is involved. The matter of fixing the fee is as purely formal as the act of the clerk in computing the number of words in a pleading in order to tax a copy fee. There does not appear any good reason, in a proceeding of this kind, for distinguishing between attorney's fees and other taxable costs. The motion to retax was proper. The delay in serving notice of the motion should not prejudice appellants' rights, for the trial court found that plaintiffs' counsel had previous knowledge of the filing of the motion, and agreed to take it up without requiring service of notice.

2. We come next to consider the manner in which the...