Lampkin v. Irwin

• Decision Date: 06 June 1918
• Docket Number: 8 Div. 90
• Citation: 202 Ala. 14,79 So. 300
• Parties: LAMPKIN v. IRWIN et al.
• Court: Alabama Supreme Court

79 So. 300

202 Ala. 14

LAMPKIN v. IRWIN et al.

8 Div. 90

Supreme Court of Alabama

June 6, 1918

Rehearing Denied June 29, 1918

Appeal from Circuit Court, Morgan County; R.C. Brickell, Judge.

Action by Tennie S. Lampkin, administratrix, against S.W. Irwin and others. Judgment for defendants, and plaintiff appeals. Modified and affirmed.

E.W Godbey, of Decatur, for appellant.

Wert &amp Lynne, of Decatur, for appellees.

GARDNER J.

The bill in this cause was filed by the appellant for the exercise of the equity of redemption. Upon the former appeal (Lampkin v. Stout, 74 So. 239), it was held that as to a portion of the indebtedness insisted upon by the mortgagee, the mortgagor was unjustly charged; but the conclusion was also reached that the mortgagor was due a reasonable attorney's fee prior to the filing of the bill in this cause, and that the mortgagee had been guilty of no conduct militating against a recovery of such a fee. A full understanding of the issues presented will be obtained by reference to the case as formerly reported. After a reversal here, the cause was again submitted for final decree in the court below upon the same testimony. In the decree rendered, the trial court, in estimating the amount due upon the mortgage indebtedness included the sum of $100 as a reasonable attorney's fee, and, as a further condition to the exercise of redemption, taxed the complainant with all the costs in the cause. For a review of the decree upon these two questions the complainant prosecutes this appeal.

At the time of the filing of the bill, the mortgage and note had been delivered by the mortgagee to his attorneys for collection, and they had written the appellant in regard to the same, and prepared and posted notices of foreclosure; the further proceedings as to foreclosure being interrupted by this suit. Only one attorney was examined upon the question of a reasonable fee, and it was his opinion that, if the demand was justly due, as contended for by the mortgagee, a reasonable fee under the circumstances would be $75 or $100, but, if the demand was unjust, that a fee of $40 or $50 would be reasonable. The attorney for the mortgagee, testifying in the cause, stated that the amount ascertained to be due and demanded of the complainant ($901.59) included a fee of $81.77. It was thus seen that the attorney only claimed this latter amount as a fee.

The language of the mortgage, and the note for...