Johnson & Murphy v. Globe Dry Goods Co.

Court of Appeals of Georgia

Johnson & Murphy v. Globe Dry Goods Co.

75 S.E. 822, 11 Ga. App. 485, 1912 Ga. App. LEXIS 68

CourtCourt of Appeals of Georgia

DecidedSeptember 24, 1912

Docket3629

StatusPublished

Cited by2 cases

This text of 75 S.E. 822 (Johnson & Murphy v. Globe Dry Goods Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Johnson & Murphy v. Globe Dry Goods Co., 75 S.E. 822, 11 Ga. App. 485, 1912 Ga. App. LEXIS 68 (Ga. Ct. App. 1912).

Pincite

Opinion

Russell, J.

Where it appeared from the record that the suit was filed eight days after the maturity of the note sued on, and consequently that the plaintiff had not given and it was not possible to give the ten days’ notice required by law, to entitle him to recover for attorney’s fees stipulated in the note, it was not error for the presiding judge, . on proper motion at the same term in which a judgment by default had been rendered, to reopen the record and amend the judgment, so .as to strike from it a recovery of attorney’s fees. The decision is controlled by the ruling of this court in Mt. Vernon Bank v. Gibbs, 1 Ga. App. 665 (58 S. E. 269). Prior to the maturity of a note which provides for the payment of attorney’s fees the right of the creditor to collect these fees is embryonic only. It can not have active existence until after the debtor fails to pay (after maturity of the contract and after notice), because prior to that energizing period the law denies it active life. The liability to pay attorney’s fees upon a note is contingent upon the failure of the debtor to pay his obligation after ten days’ notice of an intention to sue is given him. Civil Code (1910), § 4252. The service of the ten days’ notice by the plaintiff clothes him with a right which he would not otherwise possess. Rylee v. Bank of Statham, 7 Ga. App. 500 (67 S. E. 383).

Judgment affirmed.

Pottle, J., not presiding.

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Russell, J.

Where it appeared from the record that the suit was filed eight days after the maturity of the note sued on, and consequently that the plaintiff had not given and it was not possible to give the ten days’ notice required by law, to entitle him to recover for attorney’s fees stipulated in the note, it was not error for the presiding judge, . on proper motion at the same term in which a judgment by default had been rendered, to reopen the record and amend the judgment, so .as to strike from it a recovery of attorney’s fees. The decision is controlled by the ruling of this court in Mt. Vernon Bank v. Gibbs, 1 Ga. App. 665 (58 S. E. 269). Prior to the maturity of a note which provides for the payment of attorney’s fees the right of the creditor to collect these fees is embryonic only. It can not have active existence until after the debtor fails to pay (after maturity of the contract and after notice), because prior to that energizing period the law denies it active life. The liability to pay attorney’s fees upon a note is contingent upon the failure of the debtor to pay his obligation after ten days’ notice of an intention to sue is given him. Civil Code (1910), § 4252. The service of the ten days’ notice by the plaintiff clothes him with a right which he would not otherwise possess. Rylee v. Bank of Statham, 7 Ga. App. 500 (67 S. E. 383).

Judgment affirmed.

Pottle, J., not presiding.

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Bluebook (online)

75 S.E. 822, 11 Ga. App. 485, 1912 Ga. App. LEXIS 68, Counsel Stack Legal Research, https://law.counselstack.com/opinion/johnson-murphy-v-globe-dry-goods-co-gactapp-1912.

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