Wimberly v. Ocmulgee Guano Co.

Jenkins, J. In DeLamater v. Martin, supra, Mr. Justice Candler says: “At the time of bringing -the suit the plaintiff had not given the notice required by the act of 1900, and therefore he could in no event have recovered attorney’s fees in this action. It is clear that, under the ruling in the case last cited [Pickett v. Smith, 95 Ga. 757, 22 S. E. 669], he had the right to sue for the principal debt alone. It is true that in the summons first issued he apparently sued for an amount beyond the jurisdiction of the justice’s court, but as a matter of fact, not having given the requisite notice of his intention to sue for that amount, he in reality sued for less, and his suit was within the jurisdiction of the justice’s court.” In the case of Godfree v. Brooks, supra, Mr. Justice ' Atkinson, in discussing the DeLamater case, says: “In that ease the question was as to the right of the plaintiff to amend by alleging an omission to give the notice, the court holding that, with the amendment in, the court had jurisdiction. We go one step further and hold that, because the condition was precedent, the court had jurisdiction without amendment.” In the instant ease, although the summons apparently included a specific claim for attorney’s fees, still, since the condition precedent for their recovery is not made to appear, the suit must be taken as in fact embracing no such claim, and the entering up of a void judgment for the fees which were not sued for, in reality and in a legal sense, would not affect the validity of the judgment had for the amount of principal and interest sued for and within the jurisdiction of the court. Judgment affirmed. Wade, G. J., and Luke, J., concur.