Kern & Loeb v. Herring

Fish, C. J.

On January 12, 1915, the firm of Kern & Loeb brought an action against D. C. Herring, alleging “that the said D. C. Herring is indebted to petitioners in the principal sum of one thousand, one hundred and twelve and 34/100 ($1112.34) dollars, besides interest, which said indebtedness is evidenced by a certain mortgage dated the eighteenth day of May, 1895, signed by the said D. C. Herring and payable to petitioners; a true and correct copy of said mortgage is hereto attached and made a part hereof.” It is further alleged that the defendant is indebted to petitioners in the sum of ten per cent, of the principal and interest, as attorney’s fees, and that notice of intention to institute the action has been given to defendant in compliance with the statute, and that he fails and refuses to pay any part of the indebtedness, although it is due, just, and unpaid. A general judgment is prayed for, that is, for the amount of principal, interest, and attorney’s fees and costs. The material portions of the mortgage, a copy of which is attached to the petition, are as follows: “This indenture made this the eighteenth day of May, 1895, witnesseth that the said D. C. Herring, of the first part, is due the said Kern & Loeb, of the second part, the sum of sixteen hundred, twenty-four, and 23/100 dollars, which is now due and unpaid, as evidenced by note for the above amount, and bearing even date.” The instrument then recites that to secure the payment of said sum a certain stock of goods consisting of various named articles are conveyed to Kern & Loeb, the defeasance clause being as follows: “Provided, if I pay said sums on the day they become due, with interest thereon at the rate of-per cent, from-and all lawyer’s fees for collection, then this mortgage and waiver shall cease and be void.” No copy of the note secured by the mortgage is attached to the petition, nor does it appear therefrom when the note was due, nor what interest, if any, it should bear, nor from what date interest should be computed. We hold that the trial judge did not err in sustaining a general demurrer to the petition, and in dismissing the case. See Ray v. Harris, 138 Ga. 432 (75 S. E. 417). This case is not controlled by the ease of Stansell v. Corley, 81 Ga. 453 (8 S. E. 868), and nothing in this ease conflicts with the ruling there made.

Judgment affirmed.

By five Justices, all concurring, except