First National Bank of Riverside v. Holt
Before: Belcher
Synopsis
Pleading — Demurrer for Uncertainty — Copy of Note — Indorsements of Payments — Execution. — A complaint alleging that defendants executed their promissory note to the plaintiff upon a certain day, “which note is in the words and figures following,”and setting forth a copy of the note, showing indorsements thereon of payments of later date than the date of the note, and alleging a payment upon the note of a sum equal to the sum of the indorsements, is not subject to a special demurrer for uncertainty as to whether the indorsements were a component part of the note at the time of its execution, or were subsequently added, nor as to whether the copy of the note set forth is a copy of the note executed.
Id.—Foreclosure of Mortgage — Reasonable Attorney’s Fees.— Where the mortgage provides that, in the event of foreclosure, “reasonable attorney’s fees, to be taxed by the court, shall be allowed to plaintiff,” an allegation in an action of foreclosure that “two hundred dollars is a reasonable attorney’s fee to be allowed to the plaintiff for the collection of the said promissory note, and for the foreclosure of the said mortgage,” being limited to the action in hand, is neither ambiguous nor uncertain; and even if the averment were uncertain, it would not be ground of demurrer, as no averment as to what would be a reasonable fee is necessary.
Foreclosure of Mortgage — Findings — Percentage — Appeal — Objection for First Time. — In an action to foreclose a mortgage, where the court finds that there was due to the plaintiff from the defendants a certain sum for “costs, percentage, and necessary disbursements, including attorney’s fees,” and this sum was included in the judgment, an objection that the court was not authorized to add a percentage to the costs and disbursements cannot .be considered for the first time on appeal.
Belcher, C. C. This is an action to foreclose a mortgage. The defendants demurred to the complaint, [159]and their demurrer was overruled. They failed to answer within the time allowed, and thereupon judgment was entered against them, from which they appeal.
The demurrer was upon the grounds of ambiguity and uncertainty, and it specified three particulars wherein it was claimed that the complaint was defective.
The first specification is, that it does not appear whether the indorsements on the promissory note, set forth in the complaint, were part of the note at the time of its execution, or afterwards written thereon, or whether the said note is a copy of the note executed by the defendants.
The complaint alleges that the defendants executed their promissory note to the plaintiff on December 24, 1888, payable three months after date, “ which note is in the words and figures following, to wit and then sets forth a copy of the note, with the following words and figures after the signatures:—
“ Due March 24, 1889.
[Indorsed]
(< January 19, 1889, on Boyd note. ..... $107 30
March 26, 1889, on M. D. Godfrey note 216 00
May 2, 1889, paid ................... 268 44
It is argued for appellants that the words and figures following the signatures appear, according to the averment, to have been a component part of the note, and yet that they show three dates, all later than the date, and two of them later than the maturity, of the note, which, without explanation, convey the idea that the indorsements were not part of the note as originally made, but were added subsequently; and it said that this idea, being contrary to the apparent averment, and there being no explanation, makes the complaint uncertain in this respect. It is also argued that it does not appear whether or not the note set forth, with or without the indorsements, is a copy of the note executed by the defendants, because from the averment that the “ note is in the [160]
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