Opinion
October 10, 1929.
January 29, 1930.
Judgments — Confession by Prothonotary — Attorney fees — Act of February 24, 1806, Section 28, 4 Sm. L. 278.
On a petition for leave to deposit money in court with a rule to show right to collect attorney fees included in a judgment, it appeared that the defendant executed a mortgage and an accompanying bond to the plaintiff and that the bond provided for an attorney's commission of 5% in case payment had to be enforced by process of law. The defendant defaulted in payment of the mortgage and the prothonotary under the provision of section 28, of the Act of February 24, 1806, 4 Sm. L. 270, entered judgment for the plaintiff at the latter's request. The plaintiff issued execution on the judgment which included 5% of the principal, claimed as attorney fees. The defendant paid the principal of the mortgage, interest and costs and obtained leave to deposit in court the sum of $350.00, which was the amount claimed by the defendant as attorney fees. The defendant alleged that because the judgment was entered under the act of 1806, which provided that the defendant shall not be compelled to pay any costs or fee to the plaintiff's attorney, he was relieved from so much of the contract as obligated him to pay the attorney fees specified. The court below under its general powers reduced the attorney fee to $250.00.
Held: (1) That the provision in the Act of February 24, 1806, Section 28, relieving a defendant from paying any costs or fee to the plaintiff's attorney in cases where the judgment is entered by confession by the prothonotary, relates only to the statutory fee of such attorney, and not to commissions agreed upon in the bond and (2) that the attorneys commissions stipulated for in a warrant of attorney accompanying a bond, or a mortgage are not costs but are part of the judgment and belong to the plaintiff.
Appeal No. 29, October T., 1929, by defendant from decree of C.P., No. 2, Philadelphia County, September T., 1928, No. 15134, in the case of First Mortgage Guarantee Company of Phila. v. Powell.
Before PORTER, P.J., TREXLER, KELLER, LINN, GAWTHROP, CUNNINGHAM and BALDRIGE, JJ. Affirmed.
Petition for leave to pay money into court with rule to show right to collect attorney fees included in a judgment. Before LEWIS, J.
The facts are stated in the opinion of the Superior Court.
The court made absolute the rule and directed the payment of $250 to the plaintiff and the remainder to defendant. Defendant appealed.
Error assigned was the order of the court.
George Cascaden, for appellant. — The attorney's fee for collection in mortgages is rather in the nature of a penalty than of liquidated damages and belongs to the plaintiff as part of his judgment: Galligan v. Heath, 260 Pa. 457; Harper v. Consolidated Rubber Co., 284 Pa. 444; Miller v. Miller, 147 Pa. 548.
M. Jacob Markman, for appellee. — The Legislative intent was to confer on the plaintiff the power of entering judgment from a judgment bond, without the interposition of an attorney, and in such case to exempt the obligor from the payment of fees to an attorney: Helvete v. Rapp, 7 S. R. 306; McAllister's Appeal, 59 Pa. 204.
Argued October 10, 1929.
After execution issued on a judgment entered by the prothonotary pursuant to Section 28 of the Act of 1806, 4 Sm. L. 278, on a bond accompanying a mortgage, appellant obtained leave to pay into court $350, (5% of the principal claimed) as attorney's fee in the foreclosure proceeding. Such leave was granted "on condition that the defendant [appellant] pay to plaintiff forthwith the debt with interest and proper costs, plaintiff to satisfy the said motion [mortgage?] of record and a rule is granted on and upon plaintiff to show his right in the premises to the said sum of $350 or any part thereof." To that petition and rule plaintiff filed an answer. A hearing was had, apparently on petition, answer and inspection of the record of the foreclosure proceedings. The court, being of opinion "that upon the admitted facts an allowance of $250 for the services of counsel was equitable ......," made the following order which is now assigned for error by the defendant who appeals: "Rule absolute, that of the money paid into court, $250 shall be paid to plaintiff and the remainder to defendant, this to be done within 10 days."
As our attention has not been called to anything in the record that would permit us, under the rule applied in such cases, to differ from the court below as to the amount ($250) allowed to the plaintiff for the services of his attorney rendered during the foreclosure proceedings, we come at once to the point stressed on behalf of appellant in the argument.
His bond and warrant authorized the confession of judgment not only for the principal sum (cf. Keech Co. v. O'Herron, 41 Pa. Super. 108, 110) but also for "an attorney's commission of five per cent in case payment has to be enforced by process of law......" His contention is that because judgment was entered under the Act of 1806, he is relieved from complying with so much of his contract as obligated him to pay the attorney's fee specified; or to state it differently, that the statute "...... evidently adopted to enable a creditor to obtain a judgment on an obligation for the payment of money without the expense of the intervention of an attorney" (Meyers v. Freiling, 81 Pa. Super. 116, 118) deprives a creditor of the benefit of what has long been held to be a bargain that he can properly make (Daly v. Maitland, 88 Pa. 384, 386). Section 28 of the Act of 1806 authorizes the prothonotary on the application of any holder or assignee of any bond in which judgment is confessed, or containing a warrant for an attorney-at-law or other person to confess judgment, to enter the same for the amount which from the face of the instrument may be due without the agency of an attorney or declaration for a fee of one dollar to be paid by defendant, etc., "and the defendant shall not be compelled to pay any costs or fee to the plaintiff's attorney when judgment is entered on any instrument of writing as aforesaid."
There is no merit in appellant's contention. When one agrees to pay such attorney's fee, the amount (which must of course be ascertainable from the face of the instrument, if judgment be entered by the prothonotary: Connay v. Halstead, 73 Pa. 354, 357; Morel v. Morel, 81 Pa. Super. 84) becomes part of the judgment; "...... attorney's commissions stipulated for in a warrant of attorney accompanying a bond, or in a mortgage are not costs, — they are part of the judgment and belong to the plaintiff": Harper v. Rubber Co., 284 Pa. 444, 448. The purpose of the provision of the Act of 1806 that in the circumstances specified a defendant shall not be compelled to pay any costs or fee to the plaintiff's attorney, was to relieve defendant from paying the so-called docket fee otherwise payable to plaintiff's attorney, as an officer of the court, pursuant to the fee bill: see Sec. 2, Act of February 22, 1821, 7 Sm. L. 367 (cf. Pittsburgh v. O'Brien, 239 Pa. 60) and section 9 of the Act of April 2, 1868, P.L. 11. In Helvete v. Rapp, 7 S. R. 306, it was said: "The extent and sole intention of the Legislature, in conferring the power of entering a judgment on the judgment bond without the intervention of an attorney, was to except the obligor from the payment of costs to the attorney."
For an example of the treatment of an attorney's fee as costs, see The Orphans' Court Partition Act of June 7, 1917, P.L. 337, which provides for the payment of a reasonable counsel fee to be taxed by the court as part of the costs: Coopers Estate, — Pa. Superior Ct. — (12 Unoff. Adv. 310, 311); Building Assn. v. Bank, 142 Pa. 121.
Judgment affirmed.