Howard v. Carroll
| Decision Date | 19 April 1912 |
| Citation | 195 F. 646 |
| Parties | HOWARD v. CARROLL. |
| Court | U.S. Court of Appeals — Fourth Circuit |
William Pepper Constable and George Winship Taylor, for plaintiff.
Albert S. J. Owens, for defendant.
The promissory note sued on in this case was made in Atlanta, Ga. By its terms it is there payable. The defendant promised 12 months after date to pay $3,000, with interest, 'with all costs of collection, including 10 per cent. as attorney's fee if collected by law or through an attorney at law. ' The declaration asserts that there is $3,300 in controversy viz., the principal of the note and a 10 per cent attorney's fee. The defendant demurs on the ground that the declaration on its face discloses that in legal contemplation the amount in controversy does not exceed $3,000, exclusive of interest and costs.
Where the plaintiff's statement of his own case shows that he cannot in any event recover as much as the jurisdictional minimum, the court must not hear the case. Vance v Vandercook, 170 U.S. 438, 18 Sup.Ct. 674, 42 L.Ed. 1100.
It has been held that an attorney's fee contracted to be paid by the defendant is not a part of the costs, as the latter word is used in the statutes defining the jurisdiction of the courts of the United States. Such a fee constitutes a part of the amount in controversy. Rogers v. Riley (C.C.) 80 F. 759. Such sum would be a part of the damages for nonperformance of the contract. If it is, it must in determining what the amount of the controversy is be taken into the reckoning. Brown v. Webster, 156 U.S. 328 15 Sup.Ct. 377, 39 L.Ed. 440; Continental Casualty Co. v. Spradlin (C.C.A. 4 Cir.) 170 F. 322, 95 C.C.A. 112.
Defendant replies that, conceding so much, nevertheless the declaration does not show that the plaintiff is entitled to recover this attorney's fee or any part of it. Section 4252 of Georgia Code of 1910 declares that:
'Obligations to pay attorneys' fees upon any note or other evidence of indebtedness, in addition to the rate of interest specified therein, are void, and no court shall enforce such agreement to pay attorneys' fees unless the debtor shall fail to pay such debt on or before the return day of the court to which suit is brought for the collection of the same; provided, the holder of the obligation sued upon, his agent, or attorney notifies the defendant in writing ten days before suit is brought of his intention to bring suit and also the term of court to which suit shall be brought.'
The declaration does not allege that the...
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