#### Daniel Dowty v. J. W. Holtz.

1. Attorney’s fee—allowance in judgment. Although an attorney’s fee may be authorized in a power of attorney attached to a promissory note, in case of a confession of judgment under the power, this will not justify the court in allowing such fee in an ordinary suit on the note.

2. Costs—in Supreme Court—remittitur. Where an error is obviated by a remittitur in this court after an appeal is taken, the judgment will be affirmed, except as to the sum remitted, at the costs of appellee.

Appeal from the Circuit Court of Effingham county; the Hon. James C. Allen, Judge, presiding.

This was an action of assumpsit, by the appellee against the appellant, upon a promissory note, commenced by summons in the ordinary way.

Mr. Eufus C. Habeas, for the appellant.

*526Hr. Justice Cbaig

delivered the opinion of the Court:

The judgment rendered in this cause is ten dollars more than the evidence would authorize. The appellee was entitled to recover the amount of the note upon which the action was brought, and interest, but we perceive no ground upon which an attorney’s fee of ten dollars could be added to the amount of the note and interest. It is true, a power of attorney was attached to the note, which authorized an attorney of any court of record to waive process and confess judgment against appellant for the amount of the note and interest, and also an attorney’s fee of ten dollars, but that instrument only authorized an attorney’s fee in the event judgment was confessed. Upon no other contingency could it be allowed. As appellee did not, therefore, proceed under the power of attorney, but brought suit upon the note, we perceive no ground upon which a recovery could be had for more than the note and interest. In order, however, to obviate the error, indicated, appellee has entered a rem.ittitur of ten dollars as of the date of the judgment. It will not, therefore, be necessary to reverse the judgment, and it will be affirmed, except as to the amount remitted, but as the remittitur was not entered until after the appeal was pending here, a judgment will be entered against appellee for the costs of this court.

Judgment affirmed.