Schmidt v. Oregon Gold Min. Co.

• Decision Date: 03 June 1895
• Parties: SCHMIDT v. OREGON GOLD-MINING CO. [1]
• Court: Oregon Supreme Court

40 P. 406

28 Or. 9

SCHMIDT v. OREGON GOLD-MINING CO. ^[1]

Supreme Court of Oregon

June 3, 1895

Appeal from circuit court, Union county; M.D. Clifford, Judge.

Suit to foreclose a mortgage by A.L. Schmidt, trustee, against the Oregon Gold-Mining Company. There was a decree for plaintiff from which he appeals. Dismissed.

This suit was instituted to foreclose three several mortgages executed by the Oregon Gold-Mining Company to A.L. Schmidt as trustee, to secure the payment of certain bonds of the company bearing dates, respectively, May 1 and October 1 1888, and September 1, 1889. Each of said mortgages, in effect, provides that in case of default of the conditions imposed the trustee might foreclose and sell the property described therein, and that out of the proceeds he should be allowed, for attorney's fees, such sum as the court might adjudge reasonable, together with all necessary costs and expenses incurred, including a reasonable compensation to himself for the execution of the trust. The complaint sets forth, by appropriate allegations, the legal purport of these promises; and the prayer, among other things, is "for judgment and decree fixing and determining the amount to which plaintiff is entitled in this suit for reasonable at torney's fees for foreclosing the said mortgage, and for professional services herein, and declaring the same a lien upon the said mortgaged property, rights, privileges, and franchises, and directing payment therefor out of the proceeds of said mines, and the proceeds arising from the sale of said mortgaged property." The decree, among other things, contains the following findings and provisions viz.: "Now, at this day, this cause came on to be heard upon the motion of plaintiff for judgment and decree as prayed for in the complaint herein; the plaintiff appearing by T. Calvin Hyde and T.H. Crawford, of counsel, and the defendant by C.A. Johns and W.F. Butcher, of counsel. And it appearing to the court that the referee heretofore appointed herein by the court to take the testimony in the case, and to report the same to the court, together with his findings of fact and conclusions of law thereon, namely, Chas. F. Hyde an attorney of this court, did, with the assistance of John Wheeler, Esq., the official stenographer of this court, proceed to hear and take the testimony in full of the plaintiff in this cause regularly, as in his appointment ordered and directed, at which time the said defendant notified the plaintiff, by and through its said attorneys, that defendant would offer no testimony, but would consent to a judgment and decree as prayed for in plaintiff's complaint, and that for this reason no testimony was offered and taken on behalf of the defendant by said referee in this cause, and it further appearing to the court that the said referee has filed in court the testimony so taken by him on behalf of the plaintiff, and the same fully sustains the allegations of plaintiff's complaint, and that said defendant, by his said attorneys, in open court, here, now consents that a judgment and decree may be here, now, made and entered in this cause in favor of said plaintiff, A.L. Schmidt, trustee, and against the said defendant, the Oregon Gold-Mining Company, as prayed for in plaintiff's complaint, and that in said judgment and decree the court shall fix the referee's fees at the sum of $200, the stenographer's fees at the sum of $_____, and the plaintiff's attorneys' fees at such sum as the court may find reasonable for the services performed, and that the referee's fees, stenographer's fees, and that the plaintiff's attorneys' fees shall be a preferred lien upon the mortgaged property of the defendant, and the proceeds thereof, in favor of the said referee, stenographer, and the plaintiff's said attorneys, for the respective amounts found due each, as found and settled by the parties and the court, and that they, or either of them, may have execution therefor against the said mortgaged property. *** (18) The court further finds that the sum of $5,550 is a reasonable attorney's fee, in this suit, for the foreclosure of the said several mortgages and trust deeds, and that of said sum plaintiff's attorney T. Calvin Hyde should receive the sum of $2,750, and the plaintiff's attorney T.H. Crawford should receive the sum of $2,750, and that said amounts so allowed each of said attorneys should be a preferred lien upon the said mortgaged premises, and upon the funds arising from the sale of the said mortgaged property, for the payment of the same, for the enforcement of which either of said attorneys should have execution. *** (19) That upon the agreement of the parties herein, made in open court, the court finds and fixes the compensation of Chas. F. Hyde, referee herein, at the sum of $200, and the compensation of the court stenographer, John Wheeler, at the sum of $150, and that the compensation and fees of said referee and stenographer should also be preferred liens upon the said mortgaged property, and the proceeds thereof, for the payment of the same. *** It is therefore ordered, considered, adjudged, and decreed that plaintiff, A.L. Schmidt, as trustee for the holders of said bonds, have and recover of and from the defendant *** the further sum of $5,500, reasonable attorneys' fees herein, in trust for T. Calvin Hyde and T.H. Crawford, plaintiff's attorneys herein, and for the further sum of $200, referee's fees, in trust for Chas. F. Hyde, referee herein, and for the further sum of $150, stenographer's fees herein, in trust for John Wheeler, court stenographer, and for the costs and disbursements of this suit. *** And it is further ordered, adjudged, and decreed that the judgment herein made and entered for attorneys' fees, stenographer's fees, and costs and disbursements, be, and the same is hereby, adjudged and decreed to be a first lien upon all the property described in said several mortgage deeds, and the proceeds arising from the sale thereof, *** and that the proceeds arising from such sale be applied to the payment of the attorneys' fees decreed in this suit, the referee's...