170 Ga. 642 | Ga. | 1930
Lead Opinion
The Citizens and Southern National Bank as trustee • brought an equitable petition against Ten-Eifty Ponce de Leon Company, a corporation under the laws of Georgia, with its principal office in Eulton County. The petition alleged, among other things, that on or about January 1, 1935, the defendant executed its first-mortgage, seven per cent., serial gold bonds in the aggregate principal par value of $950,000, of which $25,000 principal par value matured and were paid and retired on January 1, 1928, and there are now outstanding of said issue $925,000 principal par value; that said bonds were sold by defendant for value, and are outstanding in the hands of purchasers; that on or about January 1, 1925, the defendant executed and delivered its indenture conveying to Adair Realty & Trust Company certain real property for the purpose of securing the issue of bonds mentioned, which indenture was duly recorded; that Adair Realty & Trust Company resigned its office as trustee, and the Citizens & Southern Bank was appointed as successor trustee; that under the terms of said indenture it is provided that for the period beginning January 1, 1925, and ending January 1, 1927, the defendant corporation shall deposit with the trustee, in equal annual installments on the first of each month, a sum equal to one twelfth of the total
There are other allegations in the petition, not now necessary to mention. Plaintiff prays that the indenture described in the petition be foreclosed in equity; that judgment be entered for the amount of principal, interest, costs, attorney’s fees, expenses, disbursements, and other charges due plaintiff as such trustee; that the property conveyed by the indenture for the security of said bonds be sold for the satisfaction of the indebtedness evidenced by such judgment; that a receiver be appointed to take possession of, hold, and manage the property, with full power to continue the operation thereof in the manner in which it has been operated in the past, and to take any and all steps necessary or proper for the purpose of maintaining the property and insuring and preserving the same for the benefit of the bondholders secured thereby; that
The trial judge passed an order overruling all of the said exceptions to the auditor’s report, except that he sustained exceptions of law 5 and 6, to the extent of not allowing a recovery of attorney’s fees in addition to the principal and interest, and of not allowing the plaintiff "to recover any expenses, disbursements, and other charges.” He overruled the motion to recommit the case to the auditor. Defendant excepted to each and all of these rulings. On the same date the judge passed an order sustaining the auditor’s report otherwise than as to exceptions 5 and 6 above mentioned,
To the judgment and decree of the court as set out in the foregoing statement of facts the plaintiff excepted on three grounds, as follows: “ (a) That plaintiff has not made out its cáse on the evidence, and has not shown that it is entitled to a recovery of any sum whatsoever, either on the law or the facts as introduced in evidence, (b) On the ground that the order was unseasonably entered, and could not lawfully be passed, in view of the prejudicial and material errors committed by the court in referring the case to an auditor, and in overruling defendant’s exceptions to the auditor’s report, and in overruling defendant’s motion to recommit the case to the auditor, (c) And on the further ground that the said order is contrary to law and equity.” We will take up and consider the second ground of exception first, as that seems to be the logical order in which it should be considered. It is insisted by plaintiff in error that there was no reason or ground for the appointment of an auditor, that the defendant was not present when the auditor was appointed, and that it had no notice of the. inten
'A motion was made to recommit the case to the auditor, on the ground that the report was vague and indefinite and did not contain findings upon which a final order, judgment, or decree of the court could be intelligently predicated, etc. We do not agree to this criticism of the auditor’s report; nor do we think the court erred in refusing the motion to recommit the report.
Plaintiff in error complains that plaintiff in the court below did not make out its case on the evidence, and has not shown that it is entitled to a recovery of any sum either on the law or the facts as introduced in evidence. The defendant’s answer as to many paragraphs of the petition is, that, “for want of sufficient information, defendant can neither admit nor deny the allegations.” The general rule is that such an answer to an allegation of fact that is necessarily within the knowledge of the defendant is an admission of the fact alleged. Civil Code (1910), § 5637; Southern Timber Co. v. Newport Land Co., 151 Ga. 150 (106 S. E. 103); Raleigh & Gaston R. Co. v. Pullman Co., 122 Ga. 700 (50 S. E. 1008); Southern Bell Tel. Co. v. Shamos, 12 Ga. App. 463 (77 S. E. 312); Jones v. Pope, 7 Ga. App. 538 (67 S. E. 280); Mayor &c. of Madison v. Bearden, 22 Ga. App. 376 (96 S. E. 572); McNamara v. Georgia Cotton Co., 10 Ga. App. 669 (73 S. E. 1092). But it
There is no merit in the exception to the decree that the order of the court is contrary to law and equity.
In the cross-bill of exceptions error is assigned on so much of the order of the court as held that the plaintiff was not entitled to recover attorney’s fees in addition to the principal and interest of the debt sued on, and that the plaintiff as trustee under the indenture was not entitled to recover “ expenses, disbursements, and other charges due the plaintiff as such trustee.” The indenture under which the plaintiff relies to sustain such a recovery provides that “The trustee shall be entitled to be reimbursed for all proper outlays of any nature by it incurred in the discharge of its trust, including reasonable counsel fees, and to receive reasonable and proper compensation for any service that it may at any time perform in the discharge of its duties occasioned by any default on the part of the company, and all such fees, commissions, compensation, and disbursements shall constitute a lien in its favor on the trust fund prior to the lien in favor of the bonds hereby secured.” The following is a view of the majority of the court, as written by Hines, J., on the question whether the plaintiff was entitled to attorney’s fees under the present state of the record: Section 42-52 of the Civil Code of 1910 has no application under the facts of this case. That section has application to “obligations to pay attorney’s fees upon any note, or other evidence of indebtedness, in addition to the rate of interest specified therein;” and such obligations are declared to be void unless the holder thereof notifies the defendant in writing, ten days before suit is brought thereon, of his intention to bring suit, and in such notice gives the term of the court to which the suit will be brought. That section has application solely to suits on notes 0¶ obligations wherein the makers agree to pay to the payees of such instruments, in addition to interest, attorney’s fees
Judgment affirmed on the main bill of exceptions.
Judgment reversed on the cross-bill of exceptions.
Dissenting Opinion
dissenting from the ruling in division 4 of the decision. The order of the trial judge sustaining the exception No. 5 under the head of “exceptions of law,” to the extent that it is held that the plaintiff is not entitled to recover any attorneys’ fees in addition to the principal and interest of the debt, and in otherwise overruling exception No. 5, and in sustaining exception No. 6, and in holding that the plaintiff is not entitled to recover attorneys’ fees in addition to the principal and interest- of the debt, or to recover any expenses, disbursements, and other charges, on the ground that there was no proof before the auditor as to any expenses, disbursements, and other charges actually incurred by the plaintiff, and also in entering up judgment and decree for the plaintiff for the principal and interest only, were both made August 30, 1929. On that date, and at the time of the hearing before the auditor, there was no proof of any expenses, disbursements, and other charges actually incurred by the plaintiff, and there was no proof that any notice was given as to intention to sue for attorney’s fees, or proof of the value thereof, before the auditor. It is insisted that there is in the record a judgment allowing attorney’s fees and for services, etc., but these judgments are dated September 6, and September 7, 1929, respectively, and therefore those judgments were rendered after the judgment and'decree of August 30, 1929, which is excepted to in the cross-bill of exceptions. On the record as made when the judge passed his order entering judgment for the plaintiff for principal and interest only, he was authorized and required to enter such judgment, and it was not error, on the record as then made, to refuse to allow attorneys’ fees and compensation for services, at that time. What transpired subsequently is outside the record and was subsequent to the trial; and if the plaintiff, as alleged in the cross-bill, has a valid judgment for attorney’s fees and compensation, as claimed, it has its remedy by enforcing the judgment in any court of competent jurisdiction. The plaintiff in error in the cross-bill of exceptions specifies as material to a clear understanding of the errors complained of, in addition to the record specified in the main bill of exceptions, only “exceptions pendente lite filed by the plaintiff in the court below in this case, and certified on August 30, 1929,” prior to the judgment for attorney’s fees. I think that the