Pickett v. Mershon , 135 Ga. App. 764 ( 1975 )

Pannell, Presiding Judge.

C. Earl Mershon and Barbara S. Mershon brought an action against Roscoe Pickett upon a promissory note containing the following provision: "Should this note, or any part of the indebtedness evidenced hereby, be collected by law or through an Attorney-at-Law, the holder shall be entitled to collect Attorney’s fees in an amount equal to ten (10) per cent of the principal and interest, and all costs of collection.” The trial judge sustained the complainant’s motion for summary judgment and entered a judgment for principal, interest and attorney fees and then added: "Moreover, as is further provided in the promissory note given by defendant to plaintiff, defendant shall bear plaintiffs’ costs of collection, and shall bear both parties’ costs in this action.” The defendant appealed enumerating error on this portion of the judgment. Held:

Argued September 2, 1975 Decided September 19, 1975. Glenville Haldi, for appellant. Kilpatrick, Cody, Rogers, McClatchey & Regenstein, A. Stephens Clay, for appellees.

1. Assuming, without deciding, that the provision in the note for "all costs of collection” means costs in addition to court costs, and that such provision is valid, we must hold that no recovery of such "costs” could be had in the present case as there was no proof of such "costs.”

2. We construe the words "and shall bear both parties’ costs in this action” to refer to court costs. So construed, this portion of the judgment relating to such cost was proper.

3. The judgment is reversed with direction that the present judgment be vacated and a new judgment be entered in accordance with this decision. It is further ordered that a remittitur be issued by the clerk of this court and immediately transmitted to the lower court.

Judgment reversed with directions.

Quillian and Clark, JJ., concur.