The parties herein will be referred to as they appeared in the lower court — Streety as the defendant, and John Deere Plow Company, as the plaintiff. *Page 212
The first assignment of error: That the court erred in sustaining demurrer filed by plaintiff to the plea of defendant filed June 30, 1924.
The plea demurred to undertook to defend against the action (suit on promissory notes) on the ground that the notes were given in a representative capacity and not as an individual liability. The plea at some length sets out that the business conducted under the name and style J. D. Streety was in fact the business of the estate of J. D. Streety, the father of the defendant, who had been several years dead. As a defense to this action, however, it is lacking a very material averment that the plaintiff had or was in any manner charged with notice of this fact. There was, therefore, no error in sustaining the demurrer to the plea.
Second Assignment of Error: That the court erred in making and entering a final judgment in the cause on the 10th day of September, 1924.
The argument of attorneys addressed to this assignment is that the court had no authority to enter this judgment out of term time because the notes provided for "additional sum of ten per cent of the face hereof for attorneys' fees," this being a matter to be determined by a jury — attorneys relying upon the law that the court must adjudicate a "reasonable attorney's fee" overlook the provision of 4854 (last clause) where it is said; "It shall not be necessary for the court to adjudge an attorney's fee, provided in any note or other instrument of writing, to be reasonable and just, when such fee does not exceed ten per cent of the principal sum named in said note." In this case the notes provided for ten per cent attorney's fees — and it was not necessary to adjudicate the sum to be reasonable.
Third Assignment. That the court erred in denying *Page 213 defendant's motion to vacate the final judgment. By reference to the bill of exceptions it appears that the final judgment was entered after notice served upon the defendant's attorney and accepted by him. The excuses set out in the motion as to the failure of attorney to attend hearing were addressed to the sound discretion of the Circuit Judge who heard the motion. He having been advised in the premises and having passed his judgment thereon, and it not appearing that such discretion was abused, this court will not interfere with the same.
Fourth Assignment. That the court erred in the order of November 8, 1924, denying defendant's application to be allowed to file plea of payment and allowing the case to be submitted to a jury.
Here again is a matter within the discretion of the trial judge. The declaration was filed April 7, 1924, On June 30, after demurrer had been overruled, defendant filed plea. In the motion filed November 8th, 1924, asking for leave to re-open case and file plea of payment no excuse whatever is offered for the delay in offering such plea. There appears to be no abuse of discretion in denying the motion.
Finding no reversible error, the judgment of the Circuit Court is affirmed.