Smith v. Silvers

32 Ind. 321

• Court: Indiana Supreme Court
• Decided: November 15, 1869
• Status: Published

Opinion

Erazer, C. J.

A demurrer was filed to the complaint and confessed; and thereupon an amended complaint, not essentially different from the original, was filed, together with interrogatories. The court 'refused a motion to strike out the amended complaint; and this is assigned for error. The question seems too plain for extended consideration.

There was no rule upon the defendants to answer the interrogatories; nevertheless, for want of an answer to them the.court refused to allow a defense to be- pleaded and entered judgment for the amount of the note, together with a reasonable sum for attorneys5' fees, as stipulated in the note, the defendant taking no exception, and thus failing to save any question as to the refusal' to allow a defense. •

It is questioned here whether- the stipulation for attorneys5 fees was valid. It is argued that it was an indirect method of taking usury.. We do.not so regard it. A stipulation whereby the debtor agrees to be liable for reasonable attorneys5 fees, in the event that his failure to pay the debt shall compel the creditor to resort to legal proceedings to collect his demand, is not only not usurious, but is. so eminently just that there should be no hesitation in enforcing it.

Affirmed, with costs.