Byne v. Farmers Bank , 148 Ga. 144 ( 1918 )

Beck, P. J.

(After stating the foregoing facts.),

While the court should not have retained the petition in this case for the purpose of injunction generally against the enforcement of the judgment and the fi. fa. based thereon, or for the purpose of setting aside the same, nevertheless provision should have been made to prevent the enforcement of the judgment for the excessive interest erroneously included in the judgment as the amount due. It is alleged in the petition that there was an agreement, before judgment, that judgment for attorney’s fees would not be taken except for the small charge of $15. This part of the agreement, as appears from a statement of the allegations of the petition, was complied with; but a judgment for interest to the amount of $521.00 was taken. This was manifestly in' excess of the amount of interest due, and the sourt should have required an abandonment of that part of the judgment for interest in excess of the amount due, calculating the same at the rate stipulated in the note. The court was right in not retaining the petition for the purpose of setting aside the judgment and the sale of the property, but should not have sustained the demurrer generally, without making provisions to prevent the enforcement of the judgment for the amount of interest above the' amount which would have been reached by a calculation of interest at the rate of 8 per cent., making the proper deductions for partial payments. But we do not think the judgment ought to be reversed generally. The ends of justice will be met by a reversal with direction that the judgment be modified to the extent indicated by the foregoing as proper; that is, the bank be restrained from enforcing the judgment for that portion of the interest which was erroneously included.

If the bank made an agreement with the defendant in execution as alleged in the petition, to wit, that at the sale of the land it would bid such an amount as would protect him, and failed to do so, and if that agreement was made under such circumstances as would render it binding on the bank, it may be urged against the enforcement of the fi. fa. for the excess of the amount of the same over and above the price for which the property when sold was knocked down, but we do not think it is cause for setting aside the sale, or for setting aside the judgment.

Judgment reversed, with direction.

All the Justices concur, except Fish, C. J., absent.