20 Ga. App. 755 | Ga. Ct. App. | 1917
The Citizens and Southern Bank brought suit against James MeNatt on a note due June 15, 1914, for the principal sum of $67,449.81. The defendant entered a special ap
“The defendant, James McNatt, of the said county of Toombs, is hereby required, personally or by attorney, to be and appear at the next superior court of Toombs county on the fourth Monday, that being the 24th day of May next, then and there to answer the plaintiff on the merits of the foregoing petition, as in default of such appearance the said court will proceed as to justice shall appertain. Witness, the Honorable R. N. Hardeman, judge of said superior court, this 3rd day of May, in the year of our Lord one thousand nine hundred and fifteen.
“Adams & Adams, plaintiff’s attorneys.
“Dess Gray, Clerk S. C. T. Co.”
The defendant moved to dismiss the petition and process, “because the process attached to said petition is dated May 3, 1915, and this defendant is thereby required to be and appear at the next superior court of Toombs county, on the fourth Monday, that being on the 24th day of May next, that is on the fourth Monday, being the 24th day of May, 1916, when said process should be returnable to the May term, 1915, of said court.” The next term of Toombs superior court after the process was issued would be held on the 4th Monday in that month. This motion was properly overruled. “The defendant was bound to know when the ‘next term’ of the superior court of his county would be held, and the fact that the notice incorrectly named the date of the term did not render it invalid.” American Bonding & Surety Co. v. Adams, 124 Ga. 510 (1-b) (52 S. E. 622). “The word ‘next’ in a writ of venire issued June 12, 1908, commanding the sheriff to serve the writ upon the jury commissioners, and requiring them to summon the jurors to appear before the common pleas court held on the 22d of June next, at 10 o’clock, etc., meant the next 22d day of June in that year, especially in view of the fact that the next term of the court after June 12th was June 22nd.” State v. Washington, 82 S. C. 341 (64 S. E. 386); Osgood v. Hutchins, 6 N. H. 374-384; Gibson v. Laughlin, Minor, (Ala.) 182; Fosdyck v. Per
In the petition the plaintiff asked for ten per cent, of the principal and interest as attorney’s fees. Under this provision of the note the defendant claimed that this was not allowable, and that this part of the petition should be stricken, as the plaintiff, under this provision, could recover reasonable attorney’s fees only; There was no error harmful to the defendant in refusing to strike this part of the petition, because at last it was a question of proof as to what would be reasonable attorney’s fees, and under the petition the plaintiff could recover whatever amount was shown to be reasonable as fees up to, but not in excess of, ten per cent. However, as no attorney’s fees were allowed, this ruling-could not have harmed the defendant.
From the foregoing it will be seen that the allegations of the plea seeking to set out recoupment grow out of a separate and independent contract from the note sued on, and the plea is therefore not good as one of recoupment.
The other and general allegations of the plea, as to damage to the defendant, based upon the alleged violation of duty in obtaining an extension of insurance, and thereby saving loss to the defendant, when considered in connection with the particular facts of this case, and especially in connection with the statement in the plea that the Oconee Mills agreed to insure the building, pay the premiums, and keep the insurance of full force, were properly stricken with the other portions of this amended plea.
Judgment affirmed.