Turner v. Bank of Maysville

• Citation: 79 S.E. 180,13 Ga.App. 547
• Docket Number: 4,552.
• Decision Date: 30 August 1913
• Parties: TURNER et al. v. BANK OF MAYSVILLE.
• Court: United States Court of Appeals (Georgia)

79 S.E. 180

13 Ga.App. 547

TURNER et al. v. BANK OF MAYSVILLE.

No. 4,552.

Court of Appeals of Georgia

August 30, 1913

Syllabus by the Court.

A contract may be in part conditional and in part unconditional. A note, such as that which is the basis of this 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 agrees to pay 10 per cent on the amount of the note as attorney's fees is by law conditioned upon proof that the maker was served with the 10 days' notice required by law (Civ. Code 1910, § 4252) and for that reason attorney's fees cannot be recovered unless it appears from the answer of the defendant, or from testimony introduced upon the trial, that he was notified as required by law.

Even though the suit be in default, it is error, in the absence of proof that the defendant was notified of the claim for attorney's fees as required by law, to enter judgment for attorney's fees in a suit upon a promissory note containing a stipulation for the payment of such fees.

Error from City Court of Jefferson; G. A. Johns, Judge.

Action by the Bank of Maysville against J. H. Turner and others. Judgment for plaintiff, and defendants bring error. Affirmed with directions.

J. S Ayers, of Jefferson, for plaintiffs in error.

A. C. Brown, of Jefferson, for defendant in error.

RUSSELL J.

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 10 per cent. attorney's fees. The defendants filed no answer, and the judge entered judgment against them by default, as upon an unconditional contract in writing, for the amount of the note and for attorney's fees of 10 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 Civil Code §§ 5660, 6295, 6296, 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 unconditional, it is plainly to be seen that the stipulation as to attorney's fees is a conditional contract, and therefore the allegation upon...