7 Ga. App. 755 | Ga. Ct. App. | 1910
The questions in this case arise on a rule against the sheriff to distribute a fund in his hands realized from the sale of personal property under execution. By consent the questions were submitted to the judge, without the intervention of a jury. The claimants of the fund and the claims thereon were: (1) Burgin & Sons Glass Company, under a judgment dated February 7, 1908. On this judgment an execution had been issued, and the property of the defendant sold by the sheriff and the fund then in court for distribution realized. (2) Burgin & Sons Glass Co. claimed an attorney’s fee and costs for bringing this fund into court. (3) A justice’s court execution in favor of Bishop & Babcock Company, dated November 9, 1907. (4) An execution in favor of Witteman Brothers, from the city court of Savannah, dated September 9, 1907. (5) A claim of lien by Cann, Barrow & Mclntire for attorney’s fees, for recovery of the property of the defendant in execution which had been sold by the sheriff, and from which the fund for distribution had been realized. (6) Costs of court. The fund was not sufficient to pay all the claims, and the court, after hearing the evidence, directed the sheriff to pay it out in the following order of distribution: (1) Cann, Barrow & Mclntire, $50; (2) costs of
1. The court did not err in holding that Cann, Barrow & Mc-Intire were entitled to an attorney’s lien, and that this lien should be first paid out of the fund arising from the sale of the property of the defendant which they had recovered as attorneys. Civil Code of 1895, §2814, par. 3. The statutory lien given to an attorney at law arises upon his employment, and is perfected by the ultimate recovery of the judgment for his client. Lovett v. Moore, 98 Ga. 158 (26 S. E. 498). “As between the attorney and his client, or as between him and other creditors of the latter, the filing or recording of his assertion claiming a lien on the property recovered by him is not essential to its validity.” To make it good against innocent purchasers of the property, it must be filéd and recorded; bqt as against the client and other creditors, such filing and recording are not necessary in order to make it a valid lien on the property. Civil Code of 1895, §2814, par. 4; Coleman v. Austin, 99 Ga. 629 (27 S. E. 763).
2. The court did not err, under the facts of the case, in holding that the execution in favor of Witteman Brothers, which was based on a judgment prior in date to the judgments in favor of the other claims, was entitled to precedence. The validity of the judgment in favor of Witteman Brothers is assailed on the ground that suit was not filed 14 days before the first day of the term, as required by the-statute, but was filed on the first day of the term; and because there was no valid process; and it is insisted that these two defects rendered this judgment void as to third parties, whatever might be its validity as to the defendant. In so far as the lack of process is concerned, the defendant would have the right to waive process (Civil Code, §4983); and even without an express waiver, appearance and pleading to the merits, as in this case, would in law amount to a waiver (Civil Code, §4981); and a judgment thereafter rendered would be binding not only upon the defendant, but upon all persons. We do not think, however, .that the statutory period within which the law requires a petition to be filed can be waived by the defendant so as to prejudice the rights of third persons. The waiver would be good as to him, but would not confer such jurisdiction upon the court as would authorize it to render, a judgment that would be valid against the rights
3. Where property is sold under execution and the fund is before the court for distribution, and the court awards it to a claim other than that of the selling execution, there is no law under which the attorney for the plaintiff whose execution had sold the property would be entitled to a fee out of the fund, for bringing it into court. Judgment affirmed.