70 Ga. 349 | Ga. | 1883
This was the trial of a rule against the attorney employed by the former administrator upon an estate, brought, by the administrator de bonis non on the same estate, calling upon the attorney to pay over funds in his hands belonging to the estate and collected by the attorney while in the employment of the former administrator.
Under the ruling of the court, applied by the jury to' the facts proved, a verdict was rendered for the plaintiff for the sum collected with twenty per cent damages per annum from the time of demand on the attorney, and refusal to pay said principal.sum and interest to that date.
A new trial was refused, and the attorney excepted; and assigns for error here the refusal of the new trial on various grounds alleged in the motion therefor.
When analyzed, the legal grounds pressed before us amount to these. That rule is not the remedy at all; that if the remedy, the court of ordinary and not the superior court would have jurisdiction to rule the attorney in this case; that the plaintiff in error was the attorney not
Further on the court go on to say that these defences are a “ thin veil,” and they are distinctly held to be untenable as defences to the rule, — this identical rule then pending for trial, and which has been tried, and is here now on a motion for a new trial.
So that the points, that a rule before the superior court is a legal remedy to get this money from this attorney, and that his retention of it, either to secure his fees or to indemnify himself as surety of the administrator, with his assent and by his agreement, is no defence to the rule, are expressly adjudicated in a case between these same parties and on this same subject-matter, and must be res adjudicata, if anything can be.
These principles cover the issues made by the motion for a new trial, and the errors assigned here thereon.
The result may bear hardly on the counsel of the former administrator, but the counsel must look to that administrator personally for remuneration for services rendered for his personal benefit. The estate ought not to pay for services to an administrator to prevent his removal, or for advice which led to that result, or for money collected which it was forced to litigate in order to realize.
Taking the whole case together, and applying to the facts the principles of law ruled in the ne exeat between the same parties, and the principles -equally clear which apply to points not then ruled, we do not see such errors as will authorize this court to set aside the verdict approved by the presiding judge and to award a new trial on the facts.
Judgment affirmed.
Cited for plaintiff in error: 1 Har. & Wol., 310; 3 Adol. & El., 129, 22 Tex., 327. Code, §§417, 3627, 2537; Weeks on Attorneys, 143 et seq., 5 Ga., 56; 6 Ib., 432; 9 Ib., 150; 57 Ib., 528; Code, §§2543, 1889, 406, 1253; Greenleaf Ev., 41; 19 Ga., 582; 54 Ib., 508.
For defendant: 11 Ga., 331; 58 Ib., 221; 5 Denio, 640; Weeks on Attorneys, 268; 1 Sug. on Pow., 214; 2 Wms. Exrs., 906; 1 Story Eq., 296; 47 Ga., 73 ; 4 Russel, 272; 47 Tex., 130; 26 Conn., 213; 11 Wall., 484; 4 Barn. & Ald., 47; Weeks, 94; 24 Ga., 561; 57 Ib., 313; 64 Ib., 205.