14 Ga. App. 329 | Ga. Ct. App. | 1914
The Citizens Bank of Valdosta brought suit against the Valdosta; Moultrie & Western Railroad Company upon two promissory notes, each of which contained a stipulation to pay ten per cent, of the indebtedness as attorney’s fees if the note was placed
The act creating the city court of Valdosta provides, in substance, that the practice and procedure in that court shall be the same as in the superior court, except so far as is otherwise provided in said act. It is provided in section 14 of the act that the judge shall have authority to determine all civil cases of which the court has jurisdiction and give judgment therein, provided that either party in any cause shall be entitled to a jury trial upon entering a demand therefor. Acts of 1897, p. 498. No demand was made for a jury trial in the present cases. The notes sued upon were unconditional contracts, in so far as they stipulated for the payment of principal and interest, and were conditional in so far as the promise to pay attorney’s fees was concerned, the condition being supplied by the statute which makes the giving of written notice of the intention to bring suit a condition precedent to the recovery of attorney’s fees. Civil Code, § 4252. The code provides that in all cases, except actions for unliquidated damages and suits on unconditional contracts in writing, where no defense has been filed by the party sued, the plaintiff shall be perinitted to take a verdict as if each and every item and paragraph were proved by testimony. Civil Code, § 5662. The stipulation for attorney’s fees being conditional, the judge could not, even though no defense was filed, enter up a judgment as upon an unconditional contract in writing. It has been expressly held, however, by this court that where no defense is filed, the judge may direct a verdict for attorney’s fees,
In the light of what has been said above, we come now to consider the judgments entered in the cases now before us. The language employed in the judgments indicates an affirmative finding by the court that the contract was unconditional, and that the court, in entering up judgment, was dealing with it as such; nor is this intention negatived by the recital 'in the judgment that it appeared from the plaintiff’s declaration, and not from the evidence, that written notice of suit had been given as required by law. So construing the judgment, the question is whether we shall order the attorney’s fees written off, or reverse the judgment unconditionally. When the conditions required by law for the recovery of attorney’s fees have been met, the plaintiff is as much entitled to the recovery of attorney’s fees as he is to the recovery of principal and interest. Upon the giving of the notice and the failure to pay within the-time required by law, the right to recover attorney’s fees becomes vested. It is in the nature of a penalty which the law