
    52822.
    STRICKLAND v. CITIZENS & SOUTHERN NATIONAL BANK.
   Bell, Chief Judge.

Defendant previously appealed from the grant of a summary judgment which awarded principal, interest and attorney fees on this suit on promissory notes. Another division of the court affirmed the judgment "with costs against the appellee, with direction that when the remittitur from this court reaches the court below the appellee shall promptly take an order eliminating the portion of each judgment relating to attorney fees, otherwise the judgment in both cases shall stand reversed.” The Court of Appeals’ decision in not affirming that part of the judgment granting fees was based on the failure of plaintiff to prove the giving of notice that it was claiming attorney fees. Strickland v. C. & S. Nat. Bank, 137 Ga. App. 538 (224 SE2d 504). On receipt of the remittitur the trial court entered an order eliminating the attorney fees. Plaintiff again moved for summary judgment for attorney fees and presented sufficient proof of notice. Defendant did not offer any evidence to the contrary. The trial court then granted summary judgment as to attorney fees. Held:

Submitted October 6, 1976

Decided November 8, 1976.

Lee & Clark, Steven E. Scheer, for appellant.

1. The basic result of this court’s earlier decision was to partially affirm a summary judgment, leaving the question of attorney fees for resolution in the trial court because of failure of proof by plaintiff movant. On the return to the trial court this deficiency of proof was cured and defendant did nothing in the way of any counter-showing. Accordingly, the trial court correctly entered a summary judgment against defendant for the attorney fees. The case of Candler v. Orkin, 129 Ga. App. 721 (200 SE2d 909), relied upon by defendant does not hold as defendant contends that our prior judgment unreversed would preclude the award of attorney fees after the case has been returned to the trial court. The Candler case dealt with sufficiency of the notice and not with the failure to prove it.

2. Plaintiffs failure to pay court costs as directed in our earlier decision is not cause to reverse this judgment.

Judgment affirmed.

Stolz and Smith, JJ., concur.

Adams, Adams, Brennan & Gardner, M. Lane Morrison, for appellee.  