Dawson v. Garland , 70 Ga. 447 ( 1883 )

Jackson, Chief Justice.

This case arose on the levy of a mortgage fi. fa., under sections 3971-2 of the Code, and a defence thereto, under section 3975. The errors alleged are that the court erred in allowing the plaintiff to amend the judgment and fi.fa. by striking out the sum of $45.10 for attorney’s fees, and in not dismissing the levy when this amendment was allowed, but after verdict of a jury, ordering the execution to ju'oceed for the principal and interest, without the attorneys’ fees.

1. We see no error in allowing'the amendment. It was the first trial of the foreclosure of the mortgage on personal property, on an issue between the parties, and not an ordinary affidavit of illegality to a final judgment. The issue was, shall the plaintiff have final judgment of foreclosure, and for how much ? And it was the first time the parties had met, or could meet on that issue. The judgment and fi.fa. and levy were but mesne, or in the nature of mesne process, if resisted, to bring the case into court. All previous thereto was ex parte. Therefore, the judgment, not being final, was amendable. It was really apart of the altercation between plaintiff and defendant — plaintiff’s declaration, as it were, — and the .affidavit of the defendant was his answer, his part of that altercation. Being pleading, it was amendable; and so was the execution to conform to it.

2. The levy did not fall by reason of the amendment, because it was the amendment, not of a final judgment or execution at all, but of proceedings to bring the case into court, if the amount of the foreclosure was too much, or if for any other legal reason the foreclosure was illegal. The very ground on which the ex parte foreclosure was resisted, before made final, is that it was too much by the fees of the attorneys; and yet, strange to say, when the ground is sustained and the foreclosure is allowed to become final only by lessening it to the legitimate sum, as contended for by defendant himself, he excepts to his own defence, Avhen it is allowed.

3. It must follow that the court was right to sustain the verdict of the jury, that the^. fa. proceed for the sum ascertained to be due, after striking out the attorneys’ fees, and to enter up the judgment accordingly.

As to whether the court was right in ruling that attorneys’ fees were not recoverable by foreclosure, we express no opinion, because no exception is taken to that ruling, and the point is not before us.

Judgment affirmed.