This is a suit in chancery to foreclose a mortgage. Special issues were submitted to a jury, who returned the same into court, and, among other things, found the amount due to the plaintiff from the defendant Nichols upon the note secured by the mortgage. In addition to the amount of the note, the complaint demanded a certain sum alleged to be due the plaintiff from the defendant upon a certain contract contained in the mortgage, whereby it was stipulated and agreed between the parties, that in case default be made in the pay-, ment of the note, or any part thereof, or interest thereon, and the mortgage foreclosed, the defendant Nichols, mortgagor, would pay to Scott, mortgagee, as expenses of foreclosure, a reasonable attorney’s fee, and that the mortgage was intended to secure the payment of the same. The averments of the complaint were admitted by the answer. After the return of the special findings by the jury, proof was introduced before the judge to show the reasonable value of the attorney’s fees for foreclosing the mortgage, to the introduction of which the defendant objected, and filed his bill of exceptions, the only exception in the case. After hearing this proof, and approving and adopting the findings of the jury upon the special issues, the court rendered a decree in favor of the plaintiff for the amount due upon the note and the amount due as attorney’s fees, by virtue of the agreement contained in the mortgage. There were no objections to the issues submitted to the jury, and no demand for the submission of any other'or different issues, and no objections to the findings of the court or to the decree, and the sole question *375that can be legitimately discussed or decided herein is : Did the court err in receiving proof of the reasonable value of the attorney’s fees for foreclosing the mortgage, after the special findings of the jury had been returned into court ?
This is a suit in chancery, tried before the judge sitting as a chancellor, from whom emanates the decree, and who is entirely responsible therefor. In such a suit the chancellor may send any one or more, or all the issues to a jury in aid of his conscience, or he may dispense with a jury altogether, and try all the issues himself. In either case, the chancellor is alone responsible for the decree; for if special issues are sent to a jury, he must either approve or reject them, and if he reject, make other findings upon the proof. These principles are elementary, and I doubt if they were ever seriously questioned.
It follows, therefore, that it was entirely legitimate in this case for the judge to send certain issues to a jury, and to hear proof upon others himself, and after approving or rejecting the findings of the jury, and making others of his own, upon the whole case, the pleadings, the evidence and the findings, to render a decree in accordance therewith.
Besides all this, the contract for attorney’s fees upon foreclosure, and that the reasonable value thereof was ten per cent upon the amount found due upon the note, is admitted by the defendant in his answer. It would, therefore, have been folly to have submitted to the jury a special issue upon that question. But the court in rendering a decree must take into account not only the facts established by the evidence, but all matters admitted in the pleadings. And because the chancellor took the precaution, in order further to satisfy himself as to the value of the attorney’s fees, to hear proof as to such value, notwithstanding defendant’s admission, was no error.
There can be no real controversy over the question raised by the one single exception contained in the record, and there was no good reason for appealing this case to this court. The appellant’s purpose evidently was to delay the execution of the judgment against him, and in such cases it becomes our duty, under the statute, not only to tax the costs to the appellant, but to add *376thereto a judgment against him for- such damages as may be just. The judgment is, therefore, affirmed, and it is ordered that the costs of the appeal be taxed to the appellant, and that the respondent recover against him a judgment equal to five per cent upon the amount of the judgment in the district court.
Judgment affirmed, with penalty.