Thrasher v. Moran

COOPER, C.

This is an appeal from a default judgment of foreclosure on the judgment-roll without a bill of exceptions.

It is claimed that the prayer of the complaint did not ask for attorney’s fees, and that as the relief granted against a

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defendant by default cannot exceed that prayed for in the complaint, the judgment is erroneous as to attorney’s fees. The law is as stated by appellant, and the question is as to whether or not the complaint in effect did pray for attorney’s fees. As a copy of the complaint with a copy of the summons was served upon appellant, he must be held to have had notice of all that the comp lamp stated to him, without regard to imaginary or technical criticism. He appeared by his attorney, and as he did not answer the complaint, this court will not look with favor upon technical .questions that in no way affect the merits. The defendant, with a copy of the complaint in his hand.and his attorney in court, allowed judgment to go. against him by default; therefore, his position is such that this court does not feel inclined to relieve him unless the positive mandates of the law entitle him to relief.

The complaint alleges that the mortgage provides that in case of foreclosure the plaintiff shall be entitled to ten per cent upon the amount found to be due as

counsel fees,

and that the mortgagor and mortgaged property shall be liable to plaintiff for such

“counsel fees.’’

In the prayer of the complaint after asking for judgment for the amount due on the promissory note, with interest, plaintiff asks that the property be sold “and the proceeds applied to the payment of the amount due on said note and mortgage with interest, disbursements, costs, and counsel fees.” We think appellant understood the meaning of the above language. The fact that the decree provided for an attorney’s fee of fifty dollars did not take him by surprise.

In

O’Neal

v.