
    GOURLEY v. WILLIAMS.
    No. 4276.
    Opinion Filed May 25, 1915.
    (149 Pac. 229.)
    1. APPEAL AND ERROR — Presentation for Review — Record. Where a case is brought to this court by petition in error and transcript, no questions will be considered except those appearing in the record proper.
    2. MORTGAGES — Provision for Attorney’s Fee — Reasonableness— Presumption. An agreement in a mortgage to pay an attorney’s fee on foreclosure is a contract, and not a penalty; and, if a sum certain is stipulated for, the court will consider this amount reasonable, unless it is extravagantly large and extortionate.
    3. MORTGAGES — Provision for Attorney’s Fee — Reasonableness. Where, in a mortgage for $3,000, the mortgagor agreed to pay a fee of $300 in case of foreclosure, which was allowed by the court below, this court cannot say, as a matter of law, that the amount is excessive.
    4. APPEAL AND ERROR — Presentation for Review — Exception. Where error is apparent on the face of the record, no exception is necessary in the trial court to enable this court to review the error on petition in error and transcript, but the rule does not do away with necessity of a proper assignment of such error in the petition in error.
    (Syllabus by Devercux, C.)
    
      Error from District Court. Cleveland County; B. McMillan, Judge,.
    
    Action by J. W. Williams against Austin R. Gourley and others. Judgment for plaintiff, and defendant named brings error.
    Affirmed.
    This action was one for the foreclosure of a mortgage, and the petition is, in substance, as follows: That on June 20, 1907, the defendants Ira Studebaker and Jennieve Studebaker for a good and valuable consideration executed and delivered to the . plaintiff their written promissory note whereby they promised to pay the plaintiff three years after date $3,000, with interest at the rate of 7 per cent, until maturity, and 10 per cent, after maturity. A copy of the note is attached as an exhibit, and provides, among other things, that if any installment of interest is not paid at maturity, that the principal of the note and all interest due thereon shall become due and payable at once, at the option of - the holder, but the note does not provide for any attorney’s fee.. The petition then alleges that the defendants have failed and neglected to pay the same, together with the interest due June 20, 1910. The petition further alleges that on June 20, 1907, and as a part of the same transaction, and to secure the payment of the note, the defendants Ira and Jennieve Studebaker executed and delivered their mortgage on certain land dseribed in the petition, which mortgage is attached to- the petition as an exhibit, and which was recorded on July 10, 1907. The mortgage is in the proper form, and contains the provision:
    “Said first parties expressly agree that in ease of foreclosure of this, mortgage, and as often as any proceeding shall be taken to foreclose the same, as herein provided, the mortgagor will pay to the plaintiff $300 as attorney’s or solicitor’s fees, said fee to be due and payable upon the filing of the petition for foreclosure, and shall be a further charge and lien upon the said premises described in this mortgage, and the amount thereof shall be recovered in said foreclosure suit and included in any judgment or decree rendered in any action as aforesaid, and collected, and the lien thereof enforced, in the same manner as the principal debt thereby secured.”
    
      The petition further alleges default in the payment of interest and the election of the plaintiff to declare the entire amount due, including the attorney’s fee of $300. The petition then alleges that the defendant A. B. Gourley (plaintiff in error) asserts some right in the land, hut that such right is inferior to the mortgage of the plaintiff.
    The defendants Studcbaker were duly summoned by publication, but entered no appearance, and were adjudged in default. ■The plaintiff in error, Gourley, demurred to the petition:
    “Because the petition is insufficient in substance and form, and does not state a cause of action against the defendant.”
    This demurrer was overruled, and exception saved.
    The defendant filed an answer, to which a reply was filed, but, as the case comes to this court on petition in error and transcript, none of the issues of fact raised by pleadings are material, but it may be remarked that the answer does not plead that the attorney’s fee of $300 is exorbitant, nor does it plead that the provision of the note providing for 10 per cent, after maturity is a penalty.
    The trial court rendered judgment for the plaintiff below, allowing interest on the note at 7 per cent, until maturity, and at 10 per cent, after maturity, and allowing an attorney’s fee of $300, to which judgment an exception was made as follows:
    “To which said finding's of fact and judgment rendered thereon, and each and every part thereof, the said defendant A. B. Gourley duly excepts.”
    The plaintiff in error brings the case here on petition in error and transcript, and the only errors assigned in the petition in error, which arise on the record and can be considered by us, are:
    
      “(1) That the petition filed in said cause does not support the judgment of the court, for in that the petition lias attached to it the note sued on, which note does not provide for an attorney’s fee, and said judgment, including said attorney’s fee, is erroneous t'o the extent of said attorney’s fee of $300.
    “(2) That the court erred in rendering judgment in said action for the attorney’s fee in the sum of $300.
    “(3) That the court erred in holding that the petition stated a cause of action against the plaintiff in error, and in not sustaining the demurrer of the plaintiff in error to the petition.”
    
      ■8. A. Horion and A. R. Gourley, for plaintiff in error.
    
      Everest & Campbell, for defendant in error.
   DEVEREUX, C.

(after stating the facts as above). This case comes before us by petition in error and transcript, and therefore we can consider only such questions as arise on the record proper. Ballinger v. Von Weise, 32 Okla. 114, 121 Pac. 250.

The first two errors assigned in the petition in error will be considered together, as they both raise the question whether on the face of this record there is error in the judgment in allowing an attorney’s fee of $300, as provided in the mortgage.

In 2 Wiltsie on Mortgage Foreclosure, sec. 1003, it is said:

“It is the general rule that a reasonable attorney’s fee for foreclosing a mortgage beyond the costs allowed by law may be contracted for in a mortgage, and the court will consider the amount stipulated for by the parties to be reasonable, unless it is extravagantly large and extortionate, so as to show that it was intended as a penalty to be held in terroremi over the mortgagor.”

And the rule is laid down in almost the same words in 2 Jones on Mortgages, sec. 1606.

In Sprinstead v. Crawsfordsville State Bank, 231 U. S. 541, 34 Snp. Ct. 195, 58 L. Ed. 354, the question came before the Supreme Court on the point that the record showed that the Federal courts. The note in that case was below the jurisdictional amount, but it contained, a provision for an attorney’s fee, which, if added to the note -would confer jurisdiction. The court held that it did, because the agreement to pay the attorney’s fee created a legal obligation on the part of the payor, and this became a matter1 in controversy in -making up- .the jurisdictional amount. We think that, under all the authorities, the promise to pay an attorney’s fee in a mortgage, in case of foreclosure, is a part of the contract and not a penalty.

Plaintiff in error contends that the provision in this mortgage in regard to attorney’s fees above set out, that in case of foreclosure, and as often as proceedings shall be taken to foreclose the same, the mortgagor shall pay to the mortgagee $300 as attorney’s fees, makes this a penalty in the instant case, and therefore void. We cannot agree with this contention. It still remains a contract, and, if the mortgagee should attempt to bring frequent suits and exact this fee on each one, it would be held against conscience to enforce it. Plaintiff in error, .by this argument, puts an extreme case of hardship which might arise under the contract, and asks this court for this reason to declare it void.

In Monongahela Co. v. U. S. 216 U. S. 177, 30 Sup. Ct. 356, 54 L. Ed. 435, the court says:

“Learned counsel for the defendant suggest some extreme cases showing how reckless and arbitrary might be the action of * * * officers. * * * It will be time enough to deal with such cases * * * when they arise. * * * Courts have rarely, if ever, felt themselves so bound by technical rules that they cannot find some remedy * * * for acts, whether done by government or by individual persons, that violated * * * justice or were hostile to the fundamental privileges devised for the protection of” property.

But that state of facts is not now before the court. The trial judge has allowed the fee of $300, according to the contract. There was no allegation in the answer that this amount was excessive, and we cannot say, as a matter of law, that it was.

The next assignment of error is that the court erred in holding the petition stated a cause of action, and in overruling the demurrer thereto. We fail to see wherein the petition fails to state a cause of action. It alleges all the material facts necessary, and is attacked by a general demurrer. In Emmerson v. Bobkin, 26 Okla. 218, 109 Pac. 531, 29 L. R. A. (N. S.) 786, 138 Am. St. Rep. 953, it is held that a general demurrer to a petition should be overruled, if any of the statements of causes of action are good. See, also, deciding - the same point, Ardmore State Bank v. Mason, 30 Okla. 568, 120 Pac. 1080, 39 L. R. A. (N. S.) 292; Hurst v. Sawyer, 2 Okla. 470, 37 Pac. 817; City of Guthrie v. Harvey Lumber Co., 5 Okla. 774, 50 Pac. 84; Hanenkratt v. Hamil, 10 Okla. 219, 61 Pac. 1050; State ex rel. Roberts v. Indian Territory, etc., Co., 32 Okla. 607, 123 Pac. 166; Coody v. Coody, 39 Okla. 719, 136 Pac. 754.

In Weber v. Dillon, 7 Okla. 568, 54 Pac. 894, it is held that it is only when the entire petition fails to state a cause of action that a general demurrer will lie. It is true that the petition sets out the note, which provides that it shall bear interest at 7 per cent., but, if not paid at maturity, it shall bear 10 per cent. It is clear, under the above authorities, that this question cannot be raised by a general demurrer.

The above embraces all the assignments of error set out in the petition in error that we can 'consider under the transcript in this case, as they are all that arise on the face of the record.

But plaintiff in error raises the question in his brief that the judgment is not supported by the pleadings, because it shows that the 3 per ceht. above the 7 per cent, is a penalty, as shown by the petition and exhibit, and the journal entry shows that the court allowed it as a part of the judgment, and to this extent the judgment is excessive. We have set out the assignments of error, and by no possible construction can they be held to raise this question. It is true that, where error appears on the face of the record, no exception is necessary. Coffrey v. Overholzer, S Okla. 202, 57 Pac. 206; Goodwin v. Bickford, 20 Okla. 91, 93 Pac. 548, 129 Am. St. Rep. 729; Kellogg v. School District No. 10, 13 Okla. 285, 74 Pac. 110; Baker v. Hammett, 23 Okla. 480, 100 Pac. 1114; International Harvester Co. v. Cameron, 25 Okla. 256, 105 Pac. 189; Tribal Development Co. v. White, 28 Okla. 525, 114 Pac. 736. But none of these cases hold that allcgid error can be considered without a proper assignment of error in this court. In Tribal Development Co. v. White, 28 Okla. 525, on page 529, 114 Pac. 736, on page 737, the court say:

“When the case is duly brought to this court on a transcript of the record, the error is then one appearing on the face of the record proper, and this court may review the same upon a proper assignment contained in the petition in error.”

In Turner v. First Natl. Bank, 40 Okla. 498, 139 Pac. 703, it is held:

“Where an assignment of error is so general as not to point out the real error or errors complained of, this court will not consider them, nor will it examine the record with regard thereto.”

This has been repeatedly held by this court. See Willet v. Johnson, 13 Okla. 563, 76 Pac. 174; Johnson v. Johnson, 43 Okla. 582.

There is no assignment of error in the petition in error raising the point attempted to be presented, and, following the above cases, it will not be considered.

Wc therefore, recommend that the judgment be affirmed.

By the Court: It is so ordered.  