25-1801. Lawsuit of four thousand dollars or less; recovery; costs; interest; attorney's fees.
(1) On any lawsuit of four thousand dollars or less, regardless of whether the claims are liquidated or assigned, the plaintiff may recover costs, interest, and attorney's fees in connection with each claim as provided in this section. If, at the expiration of ninety days after each claim accrued, the claim or claims have not been paid or satisfied, the plaintiff may file a lawsuit for payment of the claim or claims. If full payment of each claim is made to the plaintiff by or on behalf of the defendant after the filing of the lawsuit, but before judgment is taken, except as otherwise agreed in writing by the plaintiff, the plaintiff shall be entitled to receive the costs of the lawsuit whether by voluntary payment or judgment. If the plaintiff secures a judgment thereon, the plaintiff shall be entitled to recover:
(a) The full amount of such judgment and all costs of the lawsuit thereon;
(b) Interest at the rate of six percent per annum. Such interest shall apply to the amount of the total claim beginning thirty days after the date each claim accrued, regardless of assignment, until paid in full; and
(c) If the plaintiff has an attorney retained, employed, or otherwise working in connection with the case, an amount for attorney's fees as provided in this section.
(2) If the cause is taken to an appellate court and the plaintiff recovers a judgment thereon, the appellate court shall tax as costs in the action, to be paid to the plaintiff, an additional amount for attorney's fees in such appellate court as provided in this section, except that if the plaintiff fails to recover a judgment in excess of the amount that may have been tendered by the defendant, then the plaintiff shall not recover the attorney's fees provided by this section.
(3) Attorney's fees shall be assessed by the court in a reasonable amount, but shall in no event be less than ten dollars when the judgment is fifty dollars or less, and when the judgment is over fifty dollars up to four thousand dollars, the attorney's fee shall be ten dollars plus ten percent of the judgment in excess of fifty dollars.
(4) For purposes of this section, the date that each claim accrued means the date the services, goods, materials, labor, or money were provided, or the date the charges were incurred by the debtor, unless some different time period is expressly set forth in a written agreement between the parties.
(5) This section shall apply to original creditors as well as their assignees and successors.
(6) This section does not apply to a cause of action alleging personal injury, regardless of the legal theory asserted.
Source
Cross References
Annotations
1. Allowance
2. Denial
3. Procedure
4. Miscellaneous
1. Allowance
Plaintiff allowed fee hereunder for services of his counsel. Bauer v. Board of Regents of University of Nebraska, 192 Neb. 87, 219 N.W.2d 236 (1974).
Under this section when the judgment is over fifty dollars, the attorney's fee allowable is fixed at the sum of ten dollars plus ten percent of the judgment in excess of fifty dollars. Potts v. Mahood, 187 Neb. 142, 187 N.W.2d 655 (1971).
Attorney's fee correctly computed under facts of case. Sinnett v. Hie Food Products, Inc., 185 Neb. 221, 174 N.W.2d 720 (1970).
Allowance of attorney's fee for services in Supreme Court was proper in suit on open running account. Lewis v. Hiskey, 166 Neb. 402, 89 N.W.2d 132 (1958).
Allowance of attorneys' fees for services in Supreme Court sustained. Benson v. General Implement Corporation, 151 Neb. 234, 37 N.W.2d 223 (1949).
Party must plead and prove conditions precedent to be entitled to allowance of an attorney's fee. Haley v. Fleming, 148 Neb. 407, 27 N.W.2d 626 (1947).
It is the practice to allow attorney's fees and expenses only where provided by statute or where uniform course of procedure has been to allow such recovery. Blacker v. Kitchen Bros. Hotel Co., 133 Neb. 66, 273 N.W. 836 (1937).
Reasonable attorney's fee may be taxed against employer on claim for wages. Dobney v. Chicago & N. W. Ry. Co., 120 Neb. 824, 235 N.W. 585 (1931).
Section is not unconstitutional as providing penalty in favor of individual. Daily v. Chicago, St. P., M. & O. Ry. Co., 110 Neb. 481, 194 N.W. 676 (1923).
2. Denial
Attorney's fee for collecting an attorney's fee not allowed where first fee was expense claimed against trust fund. Krause v. State Farm Mut. Auto. Ins. Co., 184 Neb. 588, 169 N.W.2d 601 (1969).
Voluntary reduction in amount of claim to one thousand dollars did not authorize allowance of attorney's fee. Hancock v. Parks, 172 Neb. 442, 110 N.W.2d 69 (1961).
Denial of attorney's fee based upon claim against a fund paid into court was proper. United Services Automobile Assn. v. Hills, 172 Neb. 128, 109 N.W.2d 174 (1961).
Prayer for a total amount in excess of one thousand dollars due on one cause of action did not authorize allowance of attorney's fees. Schaffer v. Strauss Brothers, 164 Neb. 773, 83 N.W.2d 543 (1957).
Attorney's fees were not recoverable in action to enforce judgment. Ehlers v. Campbell, 159 Neb. 328, 66 N.W.2d 585 (1954).
3. Procedure
In order to receive an attorney fee under this section, it is necessary to plead and prove all the conditions precedent enumerated in the statute. Guaranteed Foods v. Rison, 207 Neb. 400, 299 N.W.2d 507 (1980).
Where request for attorney's fees failed to show compliance with this section or Rule 8 b 3 of Rules of the Supreme Court, 1974, it was disallowed. Edward Frank Rozman Co. v. Keillor, 195 Neb. 587, 239 N.W.2d 779 (1976).
Prejudgment interest and an attorney's fee cannot be recovered hereunder unless it is proved the claim was presented ninety days before suit commenced. Andrews Electric Co. v. Farm Automation, Inc., 188 Neb. 669, 198 N.W.2d 463 (1972).
To collect attorney's fee hereunder, plaintiff must plead and prove conditions precedent. Nichol v. Clema, 188 Neb. 74, 195 N.W.2d 233 (1972); Andrews v. Wilkie, 181 Neb. 398, 148 N.W.2d 924 (1967).
4. Miscellaneous
Cited and held not in point on facts in action involving fidelity policy or bond. Beshaler v. Helberg, 187 Neb. 584, 193 N.W.2d 261 (1971).
Allowance of attorney's fee within the limitations provided are within the sound discretion of the trial court. Anoka-Butte Lumber Co. v. Malerbi, 180 Neb. 256, 142 N.W.2d 314 (1966).