47 Ga. App. 420 | Ga. Ct. App. | 1933
The sole question raised in tbe bill of exceptions from a judgment in favor of the plaintiff bank on a promissory note, containing a usual 10 per cent, attorney’s fee provision, is whether, as a matter of law, under the record and stipulated facts, the plaintiff was entitled to recover such fees. On February 12, 1931, more than 10 days before filing suit, the plaintiff duly served the defendant with notice in proper form of its intention to bring suit on the note to the March term, 1931, of Putnam superior court (this being, more than 10 days before the return day of that term of court). On February 24, 1931, in due time for process to be served on the defendant before the March term, the suit was filed with proper process returnable to that term. Without fault of the plaintiff, the defendant was not served until March 5, 1931, prior to the March term, but too late to require at that term the defendant’s appearance, which by operation of law was deferred until the next succeeding term, in September, 1931. On August 19, 1931, the plaintiff duly served the defendant with a second notice, reciting the above facts and that delayed service had caused the September term, 1931, to become the appearance term, and requiring payment of the note on or before the return day of the latter term. The superior-court judge, sitting by agreement without a jury, and passing upon these undisputed facts, entered a judgment for the plaintiff for an amount including the attorney’s fees.
By an amendment of the original law governing the service
“Upon every petition the clerk shall indorse the date of its filing in office, which shall be considered the time of the commencement of the suit.” Civil Code, § 5551. This means that the actual date of filing shall be deemed the time of commencement of the suit. In Jordan v. Bosworth, 123 Ga. 879, 880 (51 S. E. 755), it was held that “there is no substantial difference between bringing a suit and commencing a suit,” and that section 4359 of the Civil Code, fixing a limitation when certain “ actions . . shall be brought ” is controlled by section 5551, defining what time shall be considered the “ commencement” of a suit. The Supreme Court has further held that, when valid process has been issued and annexed to the petition, which sets out a cause of action, and the filing is followed by service of the process, “the time of the commencement of the suit is the date of its filing,” and the service, when made, relates back “to the date of the filing of the petition, which will be treated as the commencement of the suit.” Nicholas v. British America Assurance Co., 109 Ga. 621, 624 (34 S. E. 1004); Brunswick Hardware Co. v. Bingham, 110 Ga. 526, 528 (35 S. E. 772); Cox v. Strickland, 120 Ga. 104 (7, 10), 114 (47 S. E. 912, 1 Ann. Cas. 870); Church v. Church, 151 Ga. 98, 101 (106 S. E. 114). The petition and process in the instant case having been
“Obligations to pay attorney’s fees upon any note or other evidence of indebtedness, in addition to the rate of interest specified therein, are void, and no court shall enforce such agreement . . unless the debtor shall fail to pay such debt on' or before the return day of the court to which suit is brought for the collection of the same: Provided, the holder of the obligation sued upon, his agent, or attorney, notifies the defendant in writing, ten days before suit is brought, of his intention to bring suit, and also the term of the court to which suit will be brought.” Civil Code, § 4252. The statute thus makes the return day and the term to which the “suit is brought” the determining factor in allowing attorney’s fees. Since, under the preceding rules, this suit must be considered as having been '“brought” to the March term, 1931, and not to the September term, 1931, the notice, which informed the defendant that the plaintiff would “ bring suit . . to the March term, 1931,” was effective and afforded a sufficient basis for the recovery of attorney’s fees. See Loftis v. Alexander, 139 Ga. 346 (3), 350 (77 S. E. 169, Ann. Cas. 1914B, 718); Kitchens v. Molton, 172 Ga. 690 (6) (158 S. E. 570); Holland v. Mutual Fertilizer Co., 8 Ga. App. 714 (70 S. E. 151); Laurens Cotton Co. v. American Trust &c. Co., 20 Ga. App. 348 (2) (93 S. E. 43); Donovan v. Hogan, 8 Ga. App. 754, 756 (70 S. E. 153).
The cases relied upon by the plaintiff in error in his strong and able brief have not been overlooked, but have been fully considered. Monroe v. Citizens Bank of Abbeville, 3 Ga. App. 296 (59 S. E. 844), is readily distinguishable from this case by its entirely different state of facts. In Toole v. Clark, 15 Ga. App. 133 (3), 136 (82 S. E. 772), while the notice stated that suit would be filed to a September term, and the petition was filed in August, “no service was issued and . . no service was made until after the court, at an adjourned term in November, granted an order to perfect service for the December term;” and consequently there was in fact no suit pending or filed returnable to the September term, as the no
Judgment affirmed.