126 Ga. 627 | Ga. | 1906
The plaintiffs instituted suit in a justice’s court. In the original summons the defendant was commanded to be and appear, etc., “to answer the complaint of Godfree and Dellinger in an action upon a note, a copy of which said note is annexed to this, summons.” Copies of four notes for $25 each, besides interest and attorney’s fees, were attached. The notes were dated November 1,. 1902.’ There was no other allegation in the summons referring to the amount sued for. If attorney’s fees be added to the principal, the total sum would exceed $100. After judgment in the justice’s court, the case was appealed to the superior court. Upon the trial of the appeal case, the court, upon motion of counsel for the defendant, dismissed the original suit, on the ground that the justice’s court was without jurisdiction. The plaintiffs assign error on that ruling.
It is urged that the justice’s court did have jurisdiction; that the attorney’s fees provided for in the note were not, under the act of 1900 (Acts 1900, p. 53), collectible, except upon giving the notice provided in the act; that there was no allegation of any such notice having been given, and that no attorney’s fees were claimed. Fairly construed, the original summons is a suit for all that by law was collectible under the note at the time of filing the suit. The law on the subject of contracts for attorney’s fees, as expressed in the act of 1900, provides: “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 to pay attorney’s fees, 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.” Under this law it is a condition precedent to the enforcement of a promise to pay attorney’s fees that the notice referred to in the act be given. Such, notice being a condition precedent, the attorney’s fees, without the notice having been given, are not collectible at law. The law‘is to be regarded as a part of the contract; and without the notice having been given, the stipulation for attorney’s fees is void and may be treated as not in the note. It follows that the summons, failing to indicate that the
Judgment reversed.