Parks v. Granger

• Decision Date: 21 March 1910
• Docket Number: 14,236
• Court: Mississippi Supreme Court
• Parties: WILLIAM B. PARKS v. VIRGINIA GRANGER

51 So. 716

96 Miss. 503

WILLIAM B. PARKS v. VIRGINIA GRANGER

No. 14,236

Supreme Court of Mississippi

March 21, 1910

FROM the chancery court of, second district, Bolivar county, HON MANUEL E. DENTON, Chancellor.

Mrs Granger, appellee, was complainant in the court below; Parks appellant, was defendant there. From a decree in complainant's favor the defendant appealed to the supreme court. The object of the suit was to enjoin the enforcement of a pretended judgment rendered in defendant's favor against complainant by a justice of the peace, on the ground that the justice's court was without jurisdiction of the cause in which it was rendered. The suit before the justice of the peace was upon a promissory note for a principal sum and it contained a promise to pay an attorney in case of suit upon the note. The principal sum due was less than two hundred dollars, but the aggregate of the principal sum due and the attorney's fee exceeded said sum.

Affirmed.

W. G. Hardie, for appellant.

Counsel argued the case fully, citing the following authorities: New Orleans, etc., R. Co. v. Evans, 49 Miss. 785; Jackson v. Whitfield, 51 Miss. 202; Ward v. Scott, 57 Miss. 826; Kiernan v. Germaino, 62 Miss. 75; Hedgecock v. Davis, 64 N.C. 650.

Chas. Scott, Woods & Scott, for appellee.

Counsel argued the case fully, citing the following authorities: Bank of Duncan v. Brittain, 92 Miss. 545, 46 So. 163; 1 Ency. of Pleadings & Prac. p. 715, and note 4; Blankenship v. Wartelsky (Tex. Sup.), 6 S.W. 143; Clark v. Brown, 48 Tex. 212; Fix v. Sissung, 83 Mich. 561, 47 N.W. 340, 21 Am. St. Rep. 620; Baxter v. Bates, 69 Ga. 587; Altgelt v. Harris (Tex.), 11 S.W. 857; Waters v. Walker (Tex. App.), 17 S.W. 1085; Moore v. Foy (Tex. App.), 15 S.W. 199; Warder at al. v. Raymond, 7 S.D. 451, 64 N.W. 525; Beach v. Atkinson, 87 Ga. 288, 13 S.E. 591; Hill v. Haas, 73 Ga. 122; Bell v. Rich, 73 Ga. 240; Almand v. Almand, 95 Ga. 204, 22 S.E. 213; Ashworth v. Harper, 95 Ga. 660, 22 S.E. 670.

OPINION

WHITFIELD, C. J.

The question presented by this record is a very interesting one, and has never been decided by this court. The question is this: Where a note is given for a sum less than $ 200, and also stipulates for an attorney's fee of 10 per cent. if suit should be instituted on said note, and the amount of the principal of the note, plus the attorney's fee of 10 per cent. of the amount of the note, together exceed $ 200, can suit be brought before a justice of the peace; or is the justice of the peace, to state it differently, without jurisdiction to try the case? In other words, is the amount of the said attorney's fee, so fixed by said per cent., and agreed by the contract to be paid in case of institution of suit, a part of the amount in controversy? The authorities elsewhere answer the question in the affirmative, that is to say, that the amount of the attorney's fee is a part of the amount in controversy, and that, as a consequence in the case stated, the justice of the peace would have no jurisdiction.

The authorities have been collected in the brief of the learned counsel for appellees, to which we refer. In the first volume of the Encyclopedia of Pleading and Practice, at page 715 note 4, it is said: "Attorney's fees, especially stipulated for in promissory notes, are not considered costs, but are calculable in determining the amount in controversy." In Blankenship v. Wartelsky, 6 S.W. 140, the court says: "Attorney's fees are not regulated by statute, and are not taxed as costs in this state. Attorney's fees spring out of the contract, on account of the failure of the maker to perform it, are incidental to it, and arise from the express agreement of the parties, and are as much a part of the controversy, or a matter in dispute, as the debt itself. If the attorney's fee was allowed by law it would then probably be held to be a part of the costs of suit, and not a subject of dispute or controversy." In the case of Baxter v. Bates, 69 Ga. 587, the court said that, where a note sued on provides for the collection of attorney's fees in addition to the principal in case of suit, and such sum and fee together make the amount beyond the jurisdictional limit, the jurisdiction of the court is ousted." In the case of Altgelt v. Harris (Tex.), 11 S.W. 857, a case directly in point, the court said: "A note for $ 194 provided for 10 per cent. attorney's fees. Held, that the collection fees could be considered on the question of the...