In re Breckinridge

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

48 N.W. 142

31 Neb. 489

IN RE BRECKINRIDGE ET AL

Supreme Court of Nebraska

March 4, 1891

ORIGINAL application for disbarment.

A. W Agee, and E. J. Hainer, for the application.

Breckenridge & Breckenridge, J. L. Webster, C. J. Greene, and C. S Montgomery, contra.

OPINION

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. Tully, 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 November, 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 that 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 actions." This act authorized the court to allow the plaintiff upon recovery of a judgment by him upon a written instrument or mortgage which contained a provision for an attorney's fee the allowance of such sum as should be deemed proper by the court, not to exceed ten per cent of the amount of the recovery. This act was repealed in 1879, the repeal taking effect June 1 of that year.

In Dow v. Updike, 11 Neb. 95, 7 N.W. 857, an action was brought on a note dated July 20, 1879, and due in 100 days after date. This note provided for a reasonable attorney's fee in case an action was brought on the note. On the trial of the cause in the court below judgment was rendered in favor of the plaintiff for the amount of the note and for $ 25 as a reasonable attorney fee. The judgment as to the attorney fee was reversed in this court, it being held that a stipulation in a promissory note to pay a reasonable attorney's fee for instituting and prosecuting a suit on the note in addition to the legal interest is unauthorized by law and void. The decision in that case was approved in Hardy v. Miller, 11 Neb. 395, 9 N.W. 475 where it...