Pierce v. Jones

Stephens, J. 1. Where the defendant in a suit upon a promissory note which is unconditional in so far as it relates to the payment of tne principal and interest, and conditional in so far as it relates to the payment of attorney’s fees, seeks in his answer to defeat in part the plaintiff’s claim for principal and interest, the answer should be. verified as to the allegations made for that purpose. Where, as in the present case, the answer is not so verified, and the plaintiff interposes a demurrer to the answer, based upon several grounds, one of which is that the answer is not verified, and where the defendant then amends his answer, and the amendment affirmatively shows that it is made in response to the' demurrer, but is not verified, and the defendant still fails to verify his answer or to move to be allowed to do so, there is no error in striking, for want of verification, those allegations of the answer which deny the alleged liability as to principal and interest, irrespective of whether they might otherwise have set forth a valid defense. Civil Code (1910), § 5660; Ward v. Frick Co., 95 Ga. 804 (22 S. E. 899); Fisher v. Savannah Guano Co., 97 Ga. 473 (3) (25 S. E. 477). O’Kelly v. Welch, 18 Ga. App. 157 (89 S. E. 76); Trippe v. Sheppard, 21 Ga. App. 279 (2) (94 S. E. 328); Patterson v. [562] Bank of Alapaha, 23 Ga. App. 622 (99 S. E. 141); Amason v. Bank of Tignall, 35 Ga. App. 509 (134 S. E. 115). Decided March 5, 1927. 2. Where an attorney for the payee in a promissory note providing for the payment of attorney’s fees in addition to principal and interest gives to the maker a written notice of the intention of the payee to bring suit on the note and to claim attorney’s fees in accordance with the terms of section 4252 of the Civil Code (1910), and where it affirmatively appears therein that the note is in the attorney’s hands for collection in behalf of the original payee, who is still the holder and owner, and where the notice discloses the address of tile attorney, the notice is not insufficient because of an alleged failure to state where the note is 'located or where or to whom it should be paid. Rylee v. Bank of Statham, 7 Ga. App. 489 (3) (67 S. E. 383); Aycock v. Tillmam, 14 Ga. App. 80 (80 S. E. 301); Phelps v. Belle Isle, 29 Ga. App. 571 (116 S. E. 217); McKibben v. Fourth National Bank, 32 Ga. App. 222 (11) (122 S. E. 891); Collins v. Savannah Guano Co., 33 Ga. App. 729 (3) (127 S. E. 672). 3. The defendant’s answer having failed to set forth defense as to any part of the plaintiff’s demand, the court did not err in striking it. “The suit then being in default, the plaintiff was entitled to take a verdict as if each and every allegation of the petition had been proven by evidence. Civil Code (1910), §§ 5539, 5662. Although it is true, as contended by counsel for plaintiff in error, that as to the notes which had not matured by their own terms the suit was not one upon unconditional contracts in writing (see Howard v. Wellham, 114 Ga. 934, 41 S. E. 62; Rodgers v. Caldwell, 112 Ga. 635, 37 S. E. 866), the direction of the verdict for the plaintiff was not for this reason violative of the provisions of the Civil Code (1910), § 6516. While the judge may ordinarily have no authority to render judgment without the verdict of a jury, except in cases referred to in that section, this does not mean that, even in those cases where the verdict of a jury is necessary, the court may not direct it where- it is demanded by the law and the facts.” Pape v. Woolford Realty Co., 35 Ga. App. 284 (6) (134 S. E. 174), and cit. (a) A fortiori, the verdict in favor of the plaintiff upon the notes providing for the payment of a certain amount as attorney’s fees was not, under the facts of this case, contrary to law as being without evidence to support it. 4. The court did not err in striking the defendant’s answer, or in refusing his motion for a new trial. Judgment affirmed. Jenkins, P. J.; and Bell, J., concur. Pierce Brothers, for plaintiff in error. D. G. Fogarty, Hardwick & Adams, contra.