29 S.E.2d 710 | Ga. Ct. App. | 1944
1. The court erred in overruling the certiorari.
2. Under the law and the evidence, the recovery in favor of the defendant for attorney's fees was unauthorized.
On the trial, the defendant and his wife testified concerning the prior relations with the plaintiff and his wife touching their business transactions and disputes, and in regard to the former actions prosecuted by the plaintiff against the defendant and his wife. Counsel for the plaintiff also testified respecting the prior actions at law. The pleadings and papers of the former actions were introduced in evidence without objection. The court charged the jury upon the issues involved, and the jury returned a verdict against the defendant for the $10 he had paid into court, and against the plaintiff for $20 attorney's fees, the net result being a verdict for $10 in favor of the defendant with costs against the plaintiff. In his petition for certiorari, the plaintiff assigned error upon several rulings of the trial judge and portions of his charge to the jury, as well as upon the verdict and judgment thereon; but did not traverse or except to the answer of the trial judge. After a hearing, the certiorari was overruled and dismissed by the superior court, and the plaintiff excepted.
The trial judge erred in overruling and dismissing the certiorari. For one reason, the verdict in favor of the defendant was not authorized. *28
The Code, § 20-1404, provides: "The expenses of litigation are not generally allowed as a part of the damages; but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them." It is well-settled law that the expenses of litigation, including attorney's fees, referred to by this section of the Code are not punitive or exemplary damages, and that they may be allowed by the jury as a part of the damages recovered by a plaintiff only when the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense. Mosely v.Sanders,
Judgment reversed. Sutton, P. J. and Felton, J., concur.