Perry v. John Hancock Mut. Life Ins. Co.

• Decision Date: 13 October 1924
• Docket Number: No. 4254.,4254.
• Citation: 2 F.2d 250
• Parties: PERRY et al. v. JOHN HANCOCK MUT. LIFE INS. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

2 F.2d 250 (1924)

PERRY et al. v. JOHN HANCOCK MUT. LIFE INS. CO.

No. 4254.

Circuit Court of Appeals, Fifth Circuit.

October 13, 1924.

John R. Cooper and W. O. Cooper, Jr., both of Macon, Ga., for appellants.

J. E. Hall and Warren Grice, both of Macon, Ga. (Hall, Grice & Bloch, of Macon, Ga., on the brief), for appellee.

Before WALKER, BRYAN, and KING, Circuit Judges.

KING, Circuit Judge.

The question in this case is whether, where a deed to secure a debt for principal, interest, and attorney's fees is being foreclosed as a mortgage in the United States District Court, a decree is proper to be rendered for the attorney's fees as well as for the principal and interest due upon said debt. That such a debt can be foreclosed in equity as a mortgage in the United States court is well settled.

The statute regulating attorney's fees in Georgia may be found in Code of Georgia of 1910, § 4252, which reads as follows:

"Obligations to pay attorney's 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 attorney's 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 the court to which suit will be brought."

The objection made is that there is no return day of the court to which the suit is brought for the collection of the debt, and that therefore the debtor cannot fail to pay such debt on or before the return day of the court. We do not agree with this contention. As was said by the court below:

"Attorney's fees are a part of the principal. Peeples v. Strickland, 101 Ga. 829, 29 S. E. 22; Hamilton v. Rogers, 126 Ga. 27, 54 N. E. 926; Evans v. Atlantic National Bank of Jacksonville, 147 Ga. 621, 95 S. E. 219; British & American Mortgage Company v. Worrill (C. C.) 168 F. 120 (6); Howard v. Carroll (D. C.) 195 F. 646. If attorney's fees cannot be collected in an equitable proceeding in the federal courts to foreclose a security deed, the jurisdiction of the federal courts of equity is impaired. Such interpretation would mean that a well established jurisdiction in equity in the federal courts was nullified by a state law which had no similar effect upon proceedings in other courts, state...