Opinion
No. 39943.
November 21, 1929.
PRINCIPAL AND SURETY: Discharge of Surety — Assumptor of 1 Mortgage-secured Note — Extension of Time — Effect. Principle reaffirmed that the maker of a mortgage-secured promissory note is not released by the act of the mortgagee in granting an extension of time of payment to an assumptor of the note without the consent of the said maker.
APPEAL AND ERROR: Review — Scope and Extent — Harmless Error —
Taxation of Attorney Fees.
COSTS: On Appeal or Error — Apportionment — Grounds Therefor.
Headnote 1: 21 R.C.L. 1018 et seq. Bills and Notes: 8 C.J., § 1430, p. 1098, n. 1.
Appeal from Monroe District Court. — W.M. WALKER and R.W. SMITH, Judges.
Action at law upon three promissory notes. Judgment for plaintiff as prayed, and the defendants appeal. — Affirmed.
D.N. Clark, for appellants.
Anderson Perry, for appellee.
This is an action upon three promissory notes, two for $1,000 each, and one for $500. The instruments are signed by all of the defendants. A motion by appellants for more specific statements of the petition was 1. PRINCIPAL overruled, and answer filed. A demurrer AND SURETY: interposed to the answer was sustained, and, discharge of appellants electing to stand on the answer, and surety: refusing to plead further, judgment was entered assumptor of against them for the amount of the notes and mortgage- costs, including attorney fees. Except the secured matter of attorney fees, the issues and facts note: are the same as in Iowa Title Loan Co. v. extension Clark Bros., 209 Iowa 169. The notes in suit are of time: a part of the series involved in the former effect. case.
The court is not disposed to recede from its holding in the former case, and its decision therein is controlling and decisive of the present controversy. Discussion, therefore, of the propositions involved would not be profitable.
Judgment was entered in favor of appellee's attorneys for 2. APPEAL AND attorney fees, as a part of the costs. The notes ERROR: in suit do not provide for attorney fees, review: although it is alleged that a mortgage executed scope contemporaneously therewith and to secure the and extent: payment of the same does contain a provision harmless with reference to attorney fees. The mortgage is error: not attached to the petition, and therefore is taxation of not before us. The taxation of attorney fees attorney: without a provision in the notes sued on fees. therefor was clearly erroneous.
The attorneys for appellee, in whose favor the attorney fees were taxed, have, according to their statement in the written argument of appellee, released and satisfied the judgment therefor in full. Although it is not properly presented to the court, the attorneys making the statement are fully bound thereby. The voluntary release by the attorneys entitled to the attorney fees is as effectual to cancel and satisfy the judgment as any ruling or order this court can make.
As the satisfaction of the judgment for attorney fees was made 3. COSTS: on of record after this appeal was perfected, there appeal or should be an apportionment of the costs in this error: court. It is, accordingly, ordered that one apportion- third of the costs be taxed to appellee, and the ment: balance to appellants. grounds therefor.
In all other respects, the judgment is affirmed. — Affirmed.
ALBERT, C.J., and EVANS, MORLING, and WAGNER, JJ., concur.