Georgia Railway & Electric Co. v. Crosby, 12 Ga. App. 750

Georgia Railway & Electric Co. v. Crosby

12 Ga. App. 750 | Ga. Ct. App. | 1913

Hill, C. J.

(After stating the foregoing facts.)

The ruling of the trial court in allowing the case to proceed for the use of plaintiff’s attorney is based upon the court’s interpretation of the law of Georgia relating to the lien of attorneys for their fees. The Civil Code (1910), § 3364, par. 2, provides as follows: “Upon suits, judgments, and decrees for money, they [attorneys] shall have a lien 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.” Learned counsel for the plaintiff in error insist (Í) that this lien attaches only to the suit, judgment, or decree, and the property recovered for his client, and that it does not attach to the subject-matter of the cause of action; and (2) that the words in the act, “no person,” are intended to mean “no person litigant,”—no defendant, or person occupying the same relative position as the defendant. .We *752think the distinction sought to be made in the first contention is based upon a misconception of the ruling of the Supreme Court on that subject. Unquestionably no lien in favor of the attorney at law attaches to the cause of action,—that is, to the cause of action before the suit is filed; but upon the institution of a suit on the cause of action the attorney’s lien attaches to the suit, which necessarily includes the cause of action. A cause of action can be settled by the parties before a suit thereon is filed, but after the suit has been filed, the suit and cause of action become one in substance, and neither the suit nor the cause of action thereafter can be settled so as to defeat the lien of the attorney. It is manifest that the attorney could not have a lien on a suit, unless the suit set forth a cause of action; and neither could he enforce such a lien unless the cause of action had been proved by the evidence, under the law applicable thereto. If for any reason the suit is finally disposed 'of by operation of law, or by a ruling of the court thereon, the lien of the attorney is necessarify discharged. .We think this is what is meant by the Supreme Court in the case of Brown v. Georgia, Carolina & Northern Ry. Co., 101 Ga. 80 (28 S. E. 634). Prior to the adoption of our first code a defendant was not allowed to settle with the plaintiff só as to defeat'a lien of the plaintiff’s attorney, whether the defendant had notice of the existence of the attorney’s claim or lien or not, and the law as fi then stood was incorporated in that code (Code of 1863, §§ 1989-90). The law as thus codified remained without change until the' act of 1873 (Acts 1873, pp. 42-46). One of the changes which the act of 1873 made in the law was that the mere filing of the suit constituted sufficient notice of the existence of a claim of a possible lien of the attorney for fees, so as to prevent the defendant from making any settlement or satisfaction of the suit to defeat the lien of the plaintiff’s attorney for fees; and the act also gave' to the attorney the right to control the case to collect his fees, in all respects as fully as his client. These provisions of the act of 1873 are in the Code of 1910, § 3364. Construing the plain language of' this section, it is clear that after suit has been filed, it can not be settled so as to defeat the lien of the attorney for his fees.

The second point insisted on by learned counsel for the plaintiff' in error,—that the inhibition is limited to a party defendant or litigant, or some one in Ms behalf,—is not without logical force;. *753for unquestionably the purpose of tbe statute is to prevent a defendant from settling with insolvent or dishonest plaintiffs a suit which has been brought by his lawyer, and thus deprive the lawyer of the fruits of his labor; but this court has no right, however logical this construction seems to be, to take from or add to the express language of the statute on the subject. That language is that “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,” etc. Courts have no right to restrict the application of the statute to parties litigant, or -the defendant in the case, where the express language of the legislature makes no such limitation, but expressly asserts the contrary. Judgment affirmed,.