Opinion
Appeal from the District Court of the Twelfth Judicial District, San Francisco County.
COUNSEL:
Sloan & Love, for Appellants.
Hall McAllister, for Respondents.
No briefs on file.
JUDGES: Heydenfeldt, J., delivered the opinion of the Court. Murray, C. J., concurred.
OPINION
HEYDENFELDT, Judge
The amended decree rendered at the same term as the first decree, is simply what the original decree should have been, and does no injustice to the defendants. In such case it is not the province of this Court to disturb it on account of any alleged irregularity not affecting the merits.
The five per cent. stipulated in the mortgage was clearly intended to provide for counsel fees alone. The costs may by possibility have exceeded the five per cent., in which event the complainants would have the right to recover them by operation of the statute, independent of any stipulation. The stipulation here is for all the costs, " including counsel fees not exceeding five per cent. of the amount due," etc. It is evident that the limitation of five per cent. is intended to apply to counsel fees alone. At any rate, we would not revise it, unless it had been brought to the attention of the District Court by motion to correct the money calculation of the decree, or to re-tax costs, or by some proceeding analogous to exceptions to a master's report.
See Carriere v. Minturn, ante, 435,