Farmers & Merchants Bank v. Alford

94 S.E. 818, 21 Ga. App. 546, 1916 Ga. App. LEXIS 66

• Court: Court of Appeals of Georgia
• Decided: December 28, 1916
• Docket: 8664
• Status: Published

Opinion

Jenkins, J.

1. A judgment by default, entered by the superior court as on an unconditional contract in writing, wherein the amounts for principal, interest, and attorney’s fees are separately stated, will be . held good as to the items for principal and interest, and void as to attorney’s fees. Clark v. Lunsford, 143 Ga. 513 (85 S. E. 708); Thompson v. Bobo, 144 Ga. 713 (87 S. E. 1056); Glennville Bank v. Deal, 146 Ga. 127 (90 S. E. 958); Valdosta do. R. Co. v. Citizens Bank, 14 Ga. App. 329 (80 S. E. 913).

2. The contention that the judgment for attorney’s fees thus obtained in the year 1909 should be sustained upon a presumption of- its validity, for the reason that it does not appear from the agreed statement of facts whether the note sued' on was executed before or after the act of 1891 (Ga. L. 1890-1, p. 221), pertaining to the collection of attorney’s fees, is not sound, since the agreed statement, by showing that the statutory notice required by the present law had been given and that no denial thereof had been made, clearly indicates that the note wa.s executed subsequently to the act of 1891, and that the case was tried in the court below on that basis. Moreover, a judgment rendered on a note executed prior to that act would, under the agreed facts, be itself void on its face as to attorney’s fees, since the judgment recites that no defense was filed and that the case was in default. See Civil Code of 1895, § 3667; Head v. Bridges, 67 Ga. 227; Parish v. Parish, 32 Ga. 653; Franklin County v. Crow, 128 Ga. 459 (57 S. E. 784).

Judgment affirmed.

Wade, C. J., and Luke, J., concur.