Syllabus
by the Court.
1. Upon
appeal from a judgment upon default the sufficiency of the
complaint is to be tested as upon demurrer, and, if the
allegations of the complaint are insufficient to sustain the
judgment, the same will be reversed.
2.
Testing the complaint in this cause by the foregoing rule
the same stated no cause of action for either attorney's
fees or the principal of the bonds sued on.
3. In
the absence of any allegation and proof of an agreement to
pay counsel fees, such fees cannot, unless specially provided
for by statute, be awarded, either as costs or otherwise.
4. An
allegation "that by reason of the failure of said
company to pay said interest coupons when due, and by reason
of their failure to have paid any part of the same for over
six months last past, and for over six months last past since
their presentation at the place designated for payment, ***
the principal *** on said bonds is now due and payable,"
is not a pleading of the substantive facts necessary to
constitute a cause of action for such principal, but is the
statement of a mere conclusion of law.
5. A
judgment for the principal of the bonds here sued on
rendered by default upon the allegations last set forth
cannot be sustained.
Appeal
from District Court, Bernalillo County; before Justice B. S
Baker.
Action
by W. E. Dame against the Cochiti Reduction & Improvement
Company. Judgment for plaintiff. Defendant appeals. Reversed.
This is
a suit filed on February 28, 1903, to recover on five bonds
sold to the plaintiff and appellee, W. E. Dame, by the
Cochiti Reduction & Improvement Company, the appellant. The
allegations of the complaint, omitting those here immaterial
are as follows: "That the defendant is a corporation
duly incorporated under the laws of the state of Colorado,
and having its principal place of business near Bland,
Bernalillo county, territory of New Mexico, and that the said
defendant, under and by virtue of its incorporation papers
and by-laws, was duly authorized and empowered to borrow
money, and thereafter its directors, duly elected, did, at a
meeting duly called, vote for the issuing of first mortgage
bonds to an amount not to exceed -- dollars, and that said
bonds were duly issued in and upon the 1st day of April,
1899. Plaintiff alleges that the said bonds were to be of the
value of one hundred ($100) dollars each, and that a copy of
said bonds is hereto attached to said complaint, marked
'Exhibit A,' and made a part of the same. Plaintiff
alleges that he purchased, for value received, five of the
said bonds hereinbefore mentioned, being the numbers 132 to
136, inclusive, and that he is at the present time the owner
of said bonds. Plaintiff further alleges that the interest
coupons for the sum of three ($3) dollars each upon each of
said bonds, due and payable on the 1st day of October, A. D.
1901, were duly presented at the place designated in said
deed of trust mortgage, to wit, the State Trust Company of
the City of New York, and payment was refused thereon, and
that all of said coupons have been due and payable for over
six months last past, and that the same were presented for
payment more than six months last past at the place
designated for payment, and said payment was refused, and the
said coupons are still due and unpaid. Plaintiff further
alleges that the interest coupons in and upon each of said
bonds for the sum of three ($3) dollars each, due and payable
on the 1st day of April, A. D. 1902, were duly presented to
the State Trust Company of the City of New York for payment
over six months last past, and that payment thereof was duly
refused, and that the same still are due and unpaid, and that
the said coupons have been due and unpaid for over six months
last past, and for over six months since the time of
presentation of the same for payment. Plaintiff further
alleges that the interest coupons for the sum of three ($3)
dollars upon each of said bonds was due and payable on the
1st day of October, A. D. 1902, and are still due and unpaid.
Plaintiff alleges that by reason of the failure of said
company to pay said interest coupons when due, and by reason
of their failure to have paid any part of the same for over
six months last past, and for over six months last past since
their presentation at the place designated for payment, that
both the principal and interest on said bonds is now due and
payable, and thereby the defendant is indebted to this
plaintiff in the sum of five hundred ($500) dollars
principal, and also forty-five ($45) dollars, being the
amount of said coupons upon said bonds, and also for interest
upon said bonds due from October 1, 1902. Wherefore the
plaintiff demands judgment against the said defendant for the
sum of five hundred ($500) dollars, the amount of the
principal of said bonds, and wherefore plaintiff also demands
judgment for the sum of forty-five ($45) dollars, being the
amount of said coupons upon the said bonds, and the plaintiff
also demands judgment against said defendant for interest due
on said bonds from October 1, 1902, up to date. Wherefore
plaintiff demands judgment against the said defendant for the
sum of five hundred and forty-five dollars ($545) dollars
from October 1, 1902, up to date, and for his costs in this
suit expended, and for attorney's fees to be fixed by the
court as a part of said costs." Upon the foregoing
allegations, plaintiff demanded judgment for $500, principal
of said bonds, $45, being amount of said coupons upon the
said bonds, with interest on said $545 from October 1, 1902,
attorney's fees, and costs. A copy of the bond and coupon
mentioned in the complaint is attached thereto. It seems
sufficient to say that in neither is there any stipulation
for the payment of attorney's fees, nor any provision
that upon default of payment of interest the principal is to
become due. The defendant failed to appear, default was
adjudged, and on April 3, 1903, final judgment was entered
for $560, together with costs, including $50 attorney's
fees. The judgment is prefaced by the following recital:
"This cause, coming on for hearing, and the jury being
waived by the plaintiff, was submitted to the court upon the
pleadings and evidence." On June 5, 1903, a motion was
filed to recall the execution and to vacate the judgment,
which being overruled, an appeal was taken to this court.
M. E.
Hickey and McMillen & Reynolds, for appellant.
E. W.
Dobson, for appellee.
POPE,
J. (after stating the facts).
The
ground specifically urged in the court below, as well as in
this court, for vacating the judgment, is that the court
erred in rendering judgment for principal and attorney's
fees, for the reason that the complaint, as to these items
sets forth no cause of action. If this contention is
supported by the record, the cause must be reversed, for no
rule is more clearly...