Parks v. Granger

delivered tbe opinion of tbe court.

Tbe 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 *505■also stipulates for an attorney’s fee of 10 per cent, if suit should be instituted on said note, and tbe amount of tbe principal of tbe note, plus tbe attorney’s fee of 10 per cent, of tbe amount of tbe note, together exceed $200, can suit be brought before a justice of tbe peace; or is tbe. justice of tbe peace, to state it differently, without jurisdiction to try tbe case ? In other words, is tbe amount of tbe said attorney’s fee, so fixed by said per ■cent., and agreed by tbe contract to be paid in case of institution of suit, a part of tbe amount in controversy ? Tbe authorities elsewhere answer tbe question in tbe affirmative, that is to say, that tbe amount of the ^attorney’s fee is a part of tbe amount in controversy, and that, as a consequence in tbe case stated, tbe justice of tbe peace would have no jurisdiction.

Tbe authorities have been collected in tbe brief .of tbe learned ■counsel for appellees, to which we refer., In tbe first volume •of tbe 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 tbe amount in controversy.” In Blankenship v. Wartelsky, 6 S. W. 143, tbe 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 tbe contract, on account of tbe failure of tbe maker to perform it, are incidental to it, and arise from tbe express agreement of tbe parties, and are as much .■a part of tbe controversy, or a matter in dispute, as the debt itself. If tbe attorney’s fee was allowed by law it would then probably be held to be a part of tbe costs of suit, and not a ■subject of dispute or controversy.” In tbe case of Baxter v. Bates, 69 Ga. 587, tbe court said that, where a note sued on provides for tbe collection of attorney’s fees in addition to tbe principal in case of suit, and such sum and fee together make the amount beyond tbe jurisdictional limit, tbe jurisdiction •of tbe court is ousted.” In tbe case of Altgelt v. Harris (Tex.), 11 S. W. 857, a case directly in point, tbe court said: “A note *506for $194 provided for 10 per cent, attorney’s fees. Held, that fke collection fe.es conld be considered on the question of the jurisdiction of the district court of an action on the note. As-the amount collectible, including such fee, would exceed $200, the district court had jurisdiction.” And the court uses this; language: “When a note was placed in the hands of an attorney for collection after its maturity, or when suit was brought, the contingency upon which the attorney’s fees were to be added to the debt had happened, and the attorney’s fees became a part of the debt, not in the nature of costs, or interest, but as principal. It has been held so several times in this state, and it-has been held that attorney’s fees will be considered in determining the question of jurisdiction. The attorney’s fees, being-added to the amount due on the note as principal only, made the amount collectible on it, exclusive of interest, $213.40, am amount of which the justice court had no- jurisdiction.” See, also, Warder v. Raymond, 7 S. D. 451, 64 N. W. 525, and Almand v. Almand, 95 Ga. 204, 22 S. E. 213. That case is-especially significant, as it was decided on reargument questioning this principle. The court reaffirmed the principle, saying:: “That the attorney’s fees constitute a part of the principal debt.is decided by a long and universal current of cases in this state.. Counsel for plaintiff in error, conceiving that these decisions-were founded in a misapprehension upon the part of this court of the. true law controlling the subject therein adjudicated,, asked leave to review them. This request was granted, and" upon consideration thereof we are well satisfied with the correctness of the principle there declared. The attorney’s fees-are not in any sense interest, nor are they any accretion-upon the principal. The stipulation for their payment is-a covenant independent of principal or interest, and the mention of them is only incidental as a means of computing and' estimating the sum which the defendant undertakes to pay in the event the plaintiff is forced to bring suit. The joinder-*507of tbis demand with, wbat is stated as technical principal makes the principal debt for recovery of wbicb this action is brought, exclusive of interest, exceed the sum of $100, and this it is that renders the judgment void.”

It follows, from these views, that the decree of the learned chancellor is correct. Affirmed.