UTAH SAVINGS LOAN ASSOCIATION v. NUNLEY, 17 Utah 2d 348 (1966)

411 P.2d 838

UTAH SAVINGS LOAN ASSOCIATION, A CORPORATION, PLAINTIFF AND RESPONDENT, v. JAMES D. NUNLEY AND MARY V. NUNLEY, HIS WIFE, AND DOMENICO CORPORATION, FIRST DOE, SECOND DOE, AND THIRD DOE, DEFENDANTS AND APPELLANTS.

No. 10451.Supreme Court of Utah.
March 8, 1966.

Appeal from the Third District Court, Salt Lake County, Marcellus K. Snow, J.

Rigtrup, Hadley, Livingston Newman, Kenneth Rigtrup, Salt Lake City, for appellants.

V. Pershing Nelson, Provo, for respondent.

HENRIOD, Chief Justice.

Appeal from an award of attorneys fees in a foreclosure action. Reversed as to said award. Costs to appellants.

Counsel for both sides were present when the foreclosure matter was submitted on the record, part of which was a general denial of matters pleaded, including the amount of attorneys fees prayed for. No evidence was offered as to the amount that should be awarded, nor was a specified amount prayed for or pleaded, but after counsel for defendants had left the courtroom, counsel for plaintiff suggested a fee consonant with a County Bar Association

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schedule and the court awarded that amount without any evidence or sworn testimony other than as suggested.

We think our recent case of F.M.A. Financial Corp. v. Build, Inc., 17 Utah 2d 80, 404 P.2d 670 (1965), inescapably applies under the facts of this particular case, and that the attorneys fee award must be vacated. It is so adjudged.[1]

McDONOUGH, CROCKETT, WADE and CALLISTER, JJ., concur.

[1] A very good statement apropos of the case here is found in Crouch v. Pixler, 83 Ariz. 310, 320 P.2d 943 at 946 (1958).