Patterson v. Bank of Alapaha

Luke, J.

1. This suit being upon a written contract which was in part unconditional and in part conditional, the court did not err in sustaining a special demurrer to that portion of the defendant’s plea which was directed solely to the unconditional part of the contract, as the plea was not under oath. See Civil Code (1910), § 5660; Monk v. National Bank of Tifton, 12 Ga. App. 253 (76 S. E. 278) ; Turner v. Bank of Mayfield, 13 Ga. App. 547 (79 S. E. 180) ; O’Kelley v. Welch, 18 Ga. App. 157 (89 S. E. 76); Trippe v. Sheppard, 21 Ga. App. 279 (2) (94 S. E. 328).

Decided April 19, 1919.

Complaint; from city court of Thomasville—Judge W. H. Hammond. June 17, 1918.

Titus, Dekle & Hopkins, for Patterson et at. Merrill & Grantham, contra.

2. As to the conditional portion of the contract, the court properly held that in so far as it denied the service of notice for the collection of attorney’s fees, verification was unnecessary; and on the trial of this issue the court (by written consent sitting as a trior of both law and fact) did not err in rendering judgment in favor of the plaintiff, for principal, interest, and attorney’s fees separately, there being ample proof submitted by the plaintiff to warrant such a judgment, and no evidénce being introduced by the defendants. Ford v. Wright, 9 Ga. App. 177 (70 S. E. 965) ; Monk v. National Bank of Tifton, supra.

3. The other questions presented for review are controlled by the following “ruling made in this case by the Supreme Court, to which court the ease was sent on the idea that it raised a constitutional question: “Upon inspection'of the record in this ease it appears that this constitutional question, which if properly presented would be within the jurisdiction of this court for determination, is raised for the first time in the bill of exceptions, and that it was not raised in and passed upon by the lower court. No valid assignment of error is therefore made so as to make this question the subject of review. No other question is made in the record which would bring the case within the jurisdiction of this court. It is therefore ordered' that the ease be transmitted to the Court of Appeals.” 148 Ga. 356 (96 S. E. 863).

Judgment affirmed on the the main hill of exceptions; cross-hill dismissed.

Wade, C. J., and Jenkins, J., concur.