Rimes v. Williams , 99 Ga. 281 ( 1896 )

Simmons, C. J.

1. Where a promissory note for the principal sum of one hundred dollars, containing also a stipulation to pay ten per cent, .as 'attorney’s fees, was sued on in a justice’s court, tlhe summons requiring the defendant “to he and appear at the next justice’s court . . to answer the complaint of [the plaintiff] in .an action upon a note, a copy of which said note is attached to this summons” (and a copy of the note being attached, as stated), it was an action for attorney’s fees as well as for the principal sum named in the note, and therefore beyond the jurisdiction of that court. Almand v. Almand & George, 95 Ga. 204. T.he original record in the case of Bell & Bro. v. Rich, 73 Ga. 240, discloses that the summons in the action there dealt with was in the form above indicated.

2. A judgment rendered in such a case in the plaintiff’s favor, though not including attorney’s fees, was void for want of jurisdiction, the question as to jurisdiction “being dependent upon the amount of principal claimed in the original suit, and not upon the sum for which plaintiff finally obtained a judgment.” Ashworth v. Harper, 95 Ga. 660.

3. The propositions above announced are not varied because the note in question was executed after the passage of the act of July 22, 1891 (Acts of 1890-91, vol. 1, p. 221), in relation to attorney’s fees. Even under that act, such fees .may be recovered if “a plea or pleas be filed by the defendant and not sustained”; but whether a plea be filed or not, the fees are sued for in an action of the kind above indicated, and it is the amount claimed in the action which fixes its status as to jurisdiction.

4. Inasmuch as the judgment to which the land involved in the present case was sought to be subjected was void for want of jurisdiction, no title passed by a sheriff’s sale thereunder, and it was error to direct a verdict in favor of the plaintiff, the validity of whose title depended upon such sale.

Judgment reversed.

Complaint for land. Before Judge Gamble. Bulloch superior court. October term, 1895.

H. B. Strange and Hines & Hale, for plaintiff in error. R. Lee Moore and Brannen & Moore, contra.