In re Breckenridge

• Decision Date: 04 March 1891
• Citation: 48 N.W. 142,31 Neb. 489
• Parties: IN RE BRECKENRIDGE ET AL.
• Court: Nebraska Supreme Court

31 Neb. 489

48 N.W. 142

IN RE BRECKENRIDGE ET AL.

Supreme Court of Nebraska.

March 4, 1891.

Syllabus by the Court.

1. From the earliest history of this state until 1873, attorney fees were not allowed to the plaintiff in any action arising upon contract. In 1873 an act was passed to allow attorney fees not to exceed 10 per cent. of the recovery in an action upon a mortgage or promissory note. This act was repealed in 1879, taking effect June 1, 1879, and since that time a court has had no authority to allow attorney fees to the plaintiff in any action upon a promissory note, or for the foreclosure of a mortgage.

2. An action to foreclose a mortgage, where the sum claimed was considerably less than $2,000, was instituted in Hamilton county. The attorneys who instituted the action thereupon filed a petition in the federal court to remove the cause into the federal court on the ground of prejudice and local influence, and one of said attorneys made oath “that, on account of prejudice and local influence, said petitioner will not be able to obtain justice in any court in the state of Nebraska; that all of said courts have refused to enforce the contract obligation assumed by said Peter and Sarah Dalke in said trust-deed,” etc. The alleged “prejudice and local influence” consisted of the construction placed on the law by the state courts that attorney fees would not be allowed, and hence that the plaintiff's attorney could not recover the same. Held, that the oath was without justification, as no prejudice or local influence, within the proper meaning of those terms, was shown.

3. The court will not permit one of its officers to resort to questionable means in the prosecution of a case in order to obtain fees not allowed by the laws of the state.

Application to disbar.

A. W. Agee, for application.

J. L. Webster, C. J. Greene, C. S. Montgomery, H. J. Davis, and John Schomp, for defendants.

MAXWELL, J.

This is a proceeding to disbar the defendants for conduct which is alleged to be unprofessional,--to use no harsher name,--in removing a cause from the district court of Hamilton county to the United States circuit court. The cause is submitted to this court on the pleadings. Without setting out the pleadings at length, it is sufficient to say that the action of which complaint is made was brought to foreclose a mortgage on real estate where the amount involved was considerably less than $2,000, and all the parties, except a nominal defendant, were citizens of the state. The removal was sought and obtained on the ground of prejudice and local influence, so as to prevent a fair trial. The affidavit is as follows: “United States of America. State of Nebraska. County of Douglas--ss.: R. W. Breckenridge, being duly sworn, on oath says he is attorney for L. W. Tulleys, trustee, defendant in the above-named cause. That he has in his possession the trust-deed held by said petitioner, and is ready to produce the same. That he has personal knowledge of the matters set forth in the foregoing petition, and the statements thereof are true. That said petitioner, at the time of the commencement of said suit, was, and still is, a citizen of the state of Iowa, residing therein. That said Peter and Sarah Dalke, between whom and said petitioner there is a controversy in said suit, are citizens of the state of Nebraska. That on account of prejudice and local influence said petitioner will not be able to obtain justice in any court in the state of Nebraska. That all said courts will refuse to enforce the contract obligation assumed by said Peter and Sarah Dalke in said trust-deed, as in the administration of justice they ought to do; and, if said cause shall be tried in any of said courts, said petitioner will suffer considerable pecuniary loss on account of such failure of justice. R. W. BRECKENRIDGE. Signed in my presence, and sworn to before me, this 25th day of Nov., 1889. ELMER D. FRANK, Clerk.” The charge of prejudice and local influence, by which the petitioner will not be able to obtain justice in any court in the state of Nebraska because all of said courts will refuse to enforce the contract obligation assumed by Peter and Sarah Dalke in the trust-deed, refers to a provision in the deed that, in case an action is brought to foreclose the mortgage, they (the mortgagors) would pay an additional sum of $160 as attorney fees, etc., in case suit should be commenced to foreclose the mortgage. This is the contract which is made the pretext for removing the cause. From the earliest history of our state until 1873 attorney fees were not allowed to the plaintiff in any action arising upon contract. In 1873 the legislature passed “An act to provide for the allowance and recovery of attorney fees in certain...