104 Ga. 353 | Ga. | 1898
On May 11, 1896, Maria L. Ragan received physical injuries in consequence of the derailment of a train of the Florida Central and Peninsular Railroad Company, upon which she was a passenger. On the next day she employed attorneys to bring suit against the railroad company for the damages sustained by her, agreeing to pay them for their services one half of such amount as she might receive from the company. Suit was accordingly filed on May 14, 1896, the damages being laid at $10,050. On the day on which suit was filed and while she was confined to her bed on account of her injuries, the company paid her $250, and took from her a receipt stating that in consideration of that sum she released and discharged the company from all claims and demands which she had or might be entitled to have against it, •either in her own name or that of any one else, and especially from all liability for loss or damage which had resulted or might result from injuries suffered by her on the occasion above mentioned. This was done without the knowledge or consent of her attorneys. She prosecuted the action, and the company set up in defense that it had settled with her in full. It admitted that but for the settlement it would be liable for the injuries. The plaintiff contended that the settlement was obtained by fraud, and therefore was not binding. It was further contended that her attorneys were not bound by the settlement, and that they had a lien upon the suit for the amount of their fees. The defendant denied that there was any fraud in the' settlement, and contended that the plaintiff ratified it' by retaining the amount received by her. Under the evidence there was some question as to whether the suit was filed before the alleged settlement was made. It does not appear that the defendant then had any actual notice of
We think this charge was error. Section 2814 (2) of the Civil Code provides that attorneys at law shall have a lien “upon suits, judgments, and decrees for money, . . superior to all liens but tax liens, and no person shall be at liberty to satisfy said suit, judgment, or decree, until the lien or claim of the attorney for his fees is fully satisfied; and attorneys at law shall have the same right and power over said suits, judgments, and decrees, to enforce their liens, as their clients had or may have for the amount due thereon to them.” It is provided in section 4973 that “upon every petition the clerk shall indorse the date of its filing in office, which shall be considered the time of the commencement of the suit.” The section first above quoted gives attorneys a lien upon the suit whenever such suit commences. Since the passage of the act from which the section second above quoted is taken, this court ruled in the case of Cherry v. Railroad Company, 65 Ga. 633, following the decision of this court in Ferguson v. New Man. Mfg. Co., 51 Ga. 609, that “the mere filing of a declaration in office, unless followed by proper service upon the defendant, is not the commencement of the suit.” The court has no jurisdiction of the defendant until after service of process; and accordingly it was held in the case of McClendon v. Hernando Phosphate Co., 100 Ga. 219, that while the suit commences when the petition is filed, it is not a “pending suit” between the parties until after service of process. Under section 2814 the lien of an attorney for his fees arises whenever the suit filed by him commences, and as the suit does not really commence at all unless followed by proper service, it follows that no lien would arise in favor of an attorney before service of process or before actual notice of the pendency of the suit.' In the Cherry case, above cited, an attempt was made to set up a contractor’s lien. Everything necessary to be done in order to establish the lien
Judgment reversed.