Opinion
Opinion filed October 29, 1930.
An Appeal from the Circuit Court for Dade County; A. J. Rose, Judge.
Affirmed in part and reversed in part.
H. Pierre Branning, J. R. B. Clemons, and Cecil Chester Curry, for Appellant;
Godard Hyzer, for Appellee.
Upon a mortgage foreclosure brought by appellee, the final decree awarded complainant $2,000.00 as principal, plus $682.57 as interest, plus taxes and costs. The decree also confirmed the report of the general master in chancery finding the sum of $500.00 as a reasonable attorney's fee. No predicate is laid in the bill of complaint, that complainant ever agreed or was obligated to pay his solicitors any amount to foreclose said mortgage, which is a prerequisite to an awarding of such fees. Blount Bros. Realty Co. v. Eilenberger, 98 Fla. 779, 124 So. R. 41.
Each point raised by appellant has been duly considered and there being no error shown as to awarding the decree for principal, interest, taxes and costs, the final decree is affirmed as to those items. See Wayne Realty Inv. Co. v. Whitten, 90 Fla. 433, 106 So. R. 125; Simon v. Williams, 140 Miss. 854, 44 A. L. R. 402, 406; Kirkland v. Tampa, 75 Fla. 271, 78 So. R. 17.
The decree is reversed as to the awarding of $500.00 solicitor's fee, which is nearly 20% of the sum of the principal and interest due. It is not only excessive, but there is no allegation or proof that complainant ever agreed to pay any fee to his solicitors. Winchester v. Hak, 98 Fla. 1071, 124 So. R. 812.
We do not overlook the fact that this case has heretofore been appealed to this Court from an order overruling a demurrer to the bill of complaint, which demurrer was found to be without merit (Reid v. Merrill, 94 Fla. 964, 114 So. R. 783) and the order overruling same affirmed without formal opinion. It is also noted that the issues are very simple, the transcript containing only 104 pages on this appeal from final decree.
Affirmed in part and reversed in part.
The record in this cause having been considered by the Court, and the foregoing opinion prepared under Chapter 14553, Acts of 1929, adopted by the Court as its opinion, it is considered, ordered and decreed by the Court that the decree of the Court below should be, and the same is hereby, affirmed as to the award for principal, interest, taxes and costs, but that said decree be and the same is hereby reversed as to the awarding of $500.00 solicitor's fee.
TERRELL, C. J., and WHITFIELD, ELLIS and BUFORD, J. J., concur.
In my opinion the judgment of reversal should be with leave to amend the pleading and introduce proof as to attorney's fees, to be followed by an appropriate decree in that respect. See Berns v. Harrison, this day filed. 131 So. R. 654. Otherwise, I concur.