This action by Buntin, administrator of James Buntin, deceased, was brought to recover attorney’s fees from appellants as 'makers of a promissory note. Appellee recovered a judgment for $40 and costs in the Circuit Court, to reverse which defendants took this appeal. This is a copy of the note:
“$400. “March 1st, 1888.
“On or before the first day of June, 1888, we promise to pay James Buntin, or order, four hundred dollars, payable at his home, for value received, with interest at the rate of eight per cent, after date. And if this note be collected by suit, we agree to pay all the costs of such suit, and an attorney’s fee of forty dollars, which shall be taxed and collected as costs in the same. ■ “ A. L. Maxwell,
“J. W. Weger,
“ Samuel Seakey.”
Suit had been brought upon this note by the administrator against the makers at a former term of the Circuit Court, and a judgment was there recovered for the full amount of principal and interest and costs, which defendants thereupon paid in open court. Plaintiff at the same time entered liis motion that $40 as attorney’s fee be taxed as costs, but the court refused to so order. We can not hold that plaintiff has a'right by separate action to recover this sum as attorney’s fee. The clause of the instrument relied on to maintain this suit is not an absolute promise to pay the payee $40, but an agreement, if the note be collected by suit, to pay that sum as attorney’s fee, with this further condition : “ which shall be taxed and collected, as costs in the same.” This condition prohibits the institution of a separate suit to recover the attorney’s fee, and restricts the remedy for its collection to the method prescribed, by having it taxed and collected as costs in the suit upon the note; and if in that suit the court could lawfully tax such fee as costs, and refused to do so, the plaintiff’s remedy was by appeal or writ of error. Entertaining the views here expressed, we reverse the judgment and decline to remand the cause.
Judgment reversed.