
    Almon C. Coburn and others v. Orlando Weed and others.
    July Term, 1873.
    IT. Error: Reviewable in Supreme Court. An error in a final judgment of the district court is reviewable in this, although no motion to correct the error has been made in that court.
    '5S. Mortgages: Foreclosure: Attorney’s Fees. It is an error to tax attorney’s fees in a foreclosure suit, unless the mortgagor has stipulated to pay them. [Dorman v. Crozier, 14 Kan. 227.]
    
      3. Pleading: Construction of Allegations. An allegation that “fifty dollars is a reasonable attorney’s fee,” and that there is due on the note and mortgage a certain amount “besides attorney’s fees accruing in this action,” is not equivalent to an allegation of an agreement to pay such fees.
    
    Error from Saline district court.
    *The case is stated in the opinion. The district court, at the November term, 1872, gave judgment for the plaintiffs, including an attorney’s fee therein.
    
      Mohler é Garvin, for plaintiffs in error.
    
      John Foster, for defendants in error.
    
      
       Where a mortgage contained a stipulation that upon default in the payment of the debt the mortgage should be “ subject to foreclosure according to law, and that an attorney’s fee of fifty dollars for foreclosure, with costs of suit and accruing costs, should he taxed against the mortgagor, ” held, that where, after suit brought, but before decree, the mortgagor paid the debt, interest, and costs, the court committed no error in refusing to render judgment in favor of the mortgagee and against the mortgagor for the fifty dollars attorney’s fee, or any part thereof, or in dismissing the action; distinguishing Life Ass’n v. Dale, 17 Kan. 185; Jennings v. McKay, 19 Kan. 122.
    
   Brewer, J.

The action below was for the foreclosure of a mortgage, and the error complained of is the taxing of an attorney’s fee in the judgment. It is objected that the question should first have been raised by motion in the district court. It has been settled otherwise. Lender v. Caldwell, 4 Kan. *339. The judgment was entered by default. The mortgage was uot made a part of the petition, nor does it appear in the record, and there is no allegation of any contract or stipulation to pay attorney’s fees. Hence it was error to render any judgment for such fees. Stover v. Johnnycake, 9 Kan. *367. The allegation in the petition that “fifty dollars is a reasonable attorney’s fee for the foreclosure,” and “that there is now due and remaining unpaid on said note and mortgage $516.65, besides $50 attorney’s fees accruing in this action,” is no allegation of an agreement to pay fees.

The judgment of the district court will be modified by striking out the attorney’s fee of fifty dollars. The costs of this court will be taxed against Orlando Weed, the party who obtained judgment for the attorney’s fee.

(All the justices concurring.)  