69-14-709. Allowance of attorney's fee. (1) Except as provided in subsection (2), whenever any of the livestock referred to in this part shall be injured or killed as therein recited and the owner thereof shall thereafter institute an action for the recovery of the loss or damage so sustained by him, the court in which such action shall be brought shall tax, as a part of the costs therein, a reasonable sum to be fixed by the court as a fee to the attorney of the prevailing or successful party for conducting such action. Said fee so fixed and allowed shall be collected in like manner as other costs.
     (2) No such fee shall be allowed by the court or collected from the defendant when it shall appear from the pleadings or proof in any such action that the defendant prior to the institution of such action offered or agreed to pay to the plaintiff therein, in settlement of the loss or damages claimed, a sum equal to or in excess of the amount recovered as damages in said action or unless the plaintiff, at least 40 days prior to the commencement of the action, shall have made demand, in writing, upon the defendant, his agent, or attorney for the sum of money claimed as indemnity for the killing of said livestock.

     History: En. Sec. 722, 5th Div. Comp. Stat. 1887; amd. Sec. 955, Civ. C. 1895; amd. Sec. 1, Ch. 101, L. 1903; re-en. Sec. 4313, Rev. C. 1907; amd. Sec. 1, Ch. 99, L. 1919; amd. Sec. 1, Ch. 226, L. 1921; re-en. Sec. 6544, R.C.M. 1921; re-en. Sec. 6544, R.C.M. 1935; R.C.M. 1947, 72-405.