36 Ga. App. 731 | Ga. Ct. App. | 1927
This case is here upon exceptions by the plaintiff to an order of the court striking all attorney’s fees from the judgment as originally rendered in the plaintiff’s favor. The suit was predicated on two promissory notes, aggregating $1,750, and an account for an item of $20.50 paid by the plaintiff on an insurance policy for the benefit of the defendant. The notes contained a promise by the maker to pay 10 per cent, for attorney’s fees in case of suit or collection by attorney. The petition alleged that the defendant was indebted for such fees, and averred the giving of the notice contemplated by the Civil Code (1910), § 4252, a copy of the
The order amending the judgment shows that it was rendered because there was no proof of the allegation of the petition in reference to the notice to the defendant of the plaintiff’s intention to sue for attorney’s fees. It seems that the able judge of the court below was induced to pass this order by the interpretation placed by him upon the decision of this court in Turner v. Bank of Maysville, 13 Ga. App. 547 (... S. E. ...). Some of the language of that decision may not be entirely clear, and may perhaps be susceptible of such a construction as would justify the order complained of. However, in Valdosta &c. R. Co. v. Citizens Bank, 14 Ga. App. 329 (80 S. E. 319), it was said that the ruling in the Turner case “is not to be construed as a holding that affirmative proof of the fact that written notice of the suit was given is necessary when the fact of notice is not denied.”
The act creating the city court of Carrollton (Ga. L., 1897, 438) provides that civil cases shall stand for trial at the second term, as in the superior court, and that “all laws and rules of court in regard to appearance and pleading, and all proceedings had in the superior courts shall apply to and govern said city court in all its proceedings, unless otherwise provided in this act”; also that the mode of commencing suits and of filing defenses, and all matters pertaining to pleading and practice in the superior courts shall obtain in such city court “if not in conflict with this act.” The act further provides that “the judge of said city court shall have power and authority to hear and determine all civil cases in said city court, and render judgments therein, without a jury; provided, that either party shall be entitled to a trial by a jury upon entering a demand therefor in writing on or before the call of the appearance docket at the appearance term, when by law he is entitled to a jury trial.” No demand was made for a jury trial in the present case, but this did not render it man
Since no jury trial’ was demanded, the judge might have disposed of the case as by a finding and judgment in favor of the plaintiff without the intervention of a jury, and could have done so without requiring the introduction of evidence, the case being in default. But, irrespective of the power of the judge to have disposed of the case in this manner, there was no error in directing a verdict under the facts appearing. If the authority of the judge of the city court of Carrollton to render judgment without a verdict of a jury, were limited to suits on unconditional contracts in writing, where no issuable defense is filed under oath or-affirmation, this would “not mean that even in those eases where the verdict of a jury is necessary, the court may not direct it where it is demanded by the law and facts” (Pape v. Woolford Realty Co., 35 Ga. App. 284 (6), 134 S. E. 174), as in cases falling under the provisions of the Civil Code (1910), § 5662. See further, in this connection, Ivey v. Payne, 8 Ga. App. 760 (70 S. E. 140); Anderson v. King, 19 Ga. App. 471 (91 S. E. 788); Pierce v. Jones, 36 Ga. App. 561.
It follows from what has been said that, except to the extent of
Judgment reversed.