102 Ga. 24 | Ga. | 1897
The question of the existence of an attorney’s lien is the only one which is involved in this case. The report shows that there was an attempt on the part of the attorneys of the applicant for the homestead to prosecute the case in the superior court for their benefit; the attorneys taking the position that they had a lien upon the • property im volved, for fees, and that their client could not settle the case so as to prevent their lien for fees from attaching.
The law regulating the liens of attorneys for their fees is found in section 2814 of the Civil Code, and ■ such liens are,
The attorneys in this case claim that they are entitled to-prosecute the application for homestead for their benefit under-the second paragraph of the section quoted above. Such lien could not exist under the authority of the first, because the-provisions of that paragraph apply alone to papers and money in the hands of such attorneys. It can not exist under the conditions of the third paragraph, because there the lien, in terms, attaches only on the property recovered. Does the lien then exist under the conditions of the second paragraph of section 2814, supra? This paragraph gives to attorneys liens on suits, judgments and decrees for money. The proceeding which was being carried on was an application made by the-wife to have a homestead of realty assigned to her and her minor children out of the property belonging to her husband. By this proceeding no money or property is sought to be recovered ; the title to the realty named in the petition is not sought to be changed. If the application was successful, the effect of setting it apart as a homestead would be to vest in the wife and children the use of this property during the minority of the latter, and the life of the former, for their support and maintenance. The liens of judgment creditors- and others, if such existed on the property, would not be destroyed, but enforcement of them postponed until this use had been terminated. If the position taken by counsel is sound, then there would be a lien created upon the property of one.
We have examined, in connection with this case, the two cases from our Reports which we think bear on the question. In the case of Collier v. Simpson, 74 Ga. 697, the court held that a mortgage to secure an attorney’s fee was not a debt-which would subject the homestead, even if the services were rendered in a case involving the removal of an incumbrance on the land. In Strohecker v. Irvine, 76 Ga. 639, this court