¶1Appellee commenced two separate chancery suits against appellant, in which injunctions were issued, enjoining and restraining him from collecting the several judgments obtained by him against appellee on two promissory notes.
¶2One judgment was for $143.45, rendered March 5, 1880, on a note executed March 31, 187’9, by Lux to Sprague for $1-30.77, due eight months afterdate, with ten per cent, interest, and the other for $104, rendered on same day on a note executed March 31, 1879, by George W. Myers as principal and Henry F. Lux, as surety, to E. B. Sprague & Co., for $95.32, due eight months after date, with ten per cent, interest.
¶3When these judgments were rendered, each note contained a power of attorney to confess a judgment, and each contained a stipulation for an attorney’s fee of five dollars.
¶4The judgments were rendered by confession on the power given in the notes.
¶5The grounds upon which appellee sought to enjoin the collection of the two judgments were, that appellant promised not to use the notes for the purpose of obtaining judgments on them by confession, but mainly, however, on the ground that the notes had been altered without the knowledge or consent of Lux or Myers after they had been delivered, by inserting in each one, provision of an attorney’s fee of five dollars.
¶6Before the hearing the two causes were consolidated by order of the court below, and on the hearing, a separate finding was made in each case, and a separate decree making the injunction in each case perpetual.
¶7The evidence oifered by the parties as to an alteration of the notes after execution was very conflicting; but as we view the case it was unimportant how such question might be determined. A calculation of the amount due on the notes, of principal and interest, when the judgments were rendered, shows that the attorneys’ fees were not included in the judgment. And even though there might have been a technical defense to the action on the notes, yet the evidence in this case is very clear that at the time the two injunctions were issued, there was equitably due appellant the full amount for which the judgments had been rendered.
¶8The statute governing the granting of injunctions is peremptory, without reference to the validity of a judgment, that “ Only so much of any judgment at law shall be enjoined as the complainant shall show himself equitably not bound to pay, and so much as shall be sufficient to cover costs.” R. S. 1874, sec. 7, p. 579.
¶9The decree, therefore, must be reversed and remanded with instructions to the court below to dissolve the injunction and dismiss the bills.
¶10Decree reversed and remanded.