13 Ga. App. 547 | Ga. Ct. App. | 1913
The Bank of Maysville brought suit upon a; note, against Turner as principal and Holder as indorser or guarantor. In the note the maker promised to pay all costs of collection, including ten per cent, attorney’s fees. The defendants filed no answer, and the judge entered judgment by default, as upon an unconditional contract in writing, for the amount of the note and for attorney’s fees of ten per cent, of the amount of the principal and interest. It appears from the record that there was no evidence that the notice required in section 4252 of the Civil Code had been given.
This judgment. was erroneous. Under the provisions of the Civil Code, §§ 5660, 6295, 6296, and 6516, the trial court is authorized to render judgment in all cases founded upon unconditional, contracts in writing, when no issuable defense is filed under oath. But since a contract may be in part conditional and in part un
A note, such as that which is the basis of the pending suit, may be unconditional in so far as it relates to the payment of the principal and interest, but the stipulation under which the maker of the note agrees to pay ten per cent, attorney’s fees is by law conditioned upon proof that the maker of the note was served with the ten-days noticé required by law (Civil Code, § 4252); and for that reason attorney’s fees can not be recovered unless it appears from the admissions of the defendant, in his answer, or from testimony introduced upon the trial, that he was notified as required by law. A substitute for other proof may be found in the fact that an appropriate and sufficient averment of notice in the plaintiff’s petition is not denied by the defendant, but there must be proof before the 'stipulation as to 'attorney’s fees, which is by law conditional, can be enforced. In the present case the judgment rendered was that provided by the code in cases of unconditional contracts in writing, .where no issuable defense is filed on oath. Since there was no answer at all on the part of the defendants, if the court had been sitting as a jury, passing alike upon issues of law and fact (ás in instances where such issues are submitted to the court unless there is a demand for trial by jury), the failure to answer would have authorized the court to find that there had been such notice of a demand for attorney’s fees ras would impose liability upon the defendants, and the court would have been authorized, in passing upon the fact of notice, to enter an appropriate judgment. However, it is apparent, from the judgment rendered in this case, that
Judgment affirmed, with direction.