153 Ga. 776 | Ga. | 1922
In Epping v. Aiken, 71 Ga. 682, it was held that where a bill in equity was brought against a partnership consisting of several members, and where one of them, who was not served, was not a party to the suit, except in so far as the partnership property was concerned, which would be bound by serving either of the other partners, the party not served need not be made a party plaintiff in error, but, the case could proceed without him. There the party omitted from the bill of exceptions was not a party to the suit
In the case at bar the member of the partnership, making no defense, got the benefit of the defense made by the partner who did defend. He reaped where he did not sow, but is vitally interested in keeping the harvest which he reaped without sowing. The judgment below was in his favor as well as in favor of the member of the firm who filed the defense and fought the case.
Where an attorney acknowledges service on a bill of exceptions
The presumption arising from such an acknowledgment of service, that is, where -the attorney signs as “ attorney for defendants in error,” and where he did not represent them in the trial court, that the attorney represents all of the defendants in error, js applicable only to the persons named, or sufficiently designated, as defendants in error in the bill of exceptions.
An acknowledgment of service on a bill of exceptions by attorneys relátes only to the persons who are actually named, or otherwise sufficiently designated therein, as defendants in error, when the acknowledgment was entered (Orr v. Webb, 112 Ga. 806 (3), 38 S. E. 98); and now, since the act of 1911, to those also whom he represented in the trial court.
What is the effect on this presumption of the fact, that one of the defendants in error made no defense in the court below, and that the attorneys making such .acknowledgment of service appeared of record in the court below only as attorneys for the defendant who filed a defense, it not appearing, otherwise than from such record and the unsworn motions of the two defendants to dismiss the writ of error, whether such attorneys were or were not authorized to sign such acknowledgment for both of the defendants ?
Does such fact rebut the presumption of authority of the attorneys to make such acknowledgment? This court has said: “ An acknowledgment of service on a bill of exceptions by counsel signing as attorneys for ‘respondents/ will be construed, as evidence of service on all the respondents, where the record fails to show that any of the respondents were represented by different counsel in the court below.” State v. Bridges, 64 Ga. 146. This decision does not hold that such an acknowledgment for all the
In Redman v. Hitchins, 113 Ga. 380 (38 S. E. 819), relied on by counsel for defendants in error, the acknowledgment of service upon the bill of exceptions was neither signed by the defendant in error nor by any person purporting to act as his attorney at law, such acknowledgment being signed only by “Dempsey & Mills,” whose relation to the case did not appear. In Ware v. Ware, 20 Ga. App. 202 (92 S. E. 961), the Court of Appeals held-that “ Service of a bill of exceptions upon counsel of record in the case binds all parties represented in the trial court by the counsel served.” What would be the effect of an acknowledgment of service by counsel for a defendant in error whom they did not represent in the court below, was not made or passed upon by the court in that case.
In Bank of Dalton v. Glark, supra, the Court of Appeals said: “ Where a bill of exceptions i is served upon counsel of record in the case, such service shall be held to bind all parties whom such counsel represented in the trial court.’ Acts 1911, p. 149; Park’s Ann. Code, § 6164(a). This provision of the statute contains a negative pregnant that such service will not bind any party whom such counsel did not represent in the trial court.” This language of the court seems to favor the contention of counsel for the defendants in error in the ease under consideration; but it is to be noted that the court, in that case, considered aliunde evidence in determining whether the attorney who acknowledged service for the defendants in error really represented one of the defendants. In that case the court considered the record, the sworn motion to
What raises the presumption of authority fox an attorney to represent a client ? It is the doing of some act for the client by virtue of his office as an attorney, and which he would not be justified in doing unless he was employed as such an attorney and thus authorized to do such act. It is not his previous relation to the case alone which creates the presumption; but his act for the cliént in some subsequent step in the case will likewise do so. It was never the intention of the legislature that a party could not act by an attorney, in acknowledging service of a bill of exceptions, unless such attorney represented him in the trial -court. “ His authority to acknowledge service for all the defendants in error is to be inferred from the fact that he so signed.”. Connor v. Hodges, 7 Ga. App. 153 (66 S. E. 546). So we answer the' third question in the affirmative.
.4. Does the provision in section 5343 of the Civil Code which declares -that attorneys, after having been served with written demand to pay over money collected by them for clients and by them withheld from their clients, shall be compelled to pay at the rate of twenty per cent, per annum upon the sum thus withheld by them after such demand, have reference only to proceedings under a rule taken against such attorneys; or is such provision for the payment of such twenty per cent, applicable in a suit at law for the recovery of such alleged collection? There is nothing in this section which so limits this provision. It broadly declares that if any “ attorney at law shall fail, upon application, to pay to the proper person, or his attorney, any money they have in their hands, which they may have collected by virtue of their office, the party entitled thereto, or his attorney, may serve said officer with a written demand for the same; and if not then paid, for such neglect or refusal the said officer shall be compelled to pay at the