119 Ga. 463 | Ga. | 1904
Attorneys who retain in their hands the money of their clients are liable to rule. Civil Code, § 4416. The remedy is penal in its nature, and must be strictly construed. Banks v. Cage, 1 Howard (Miss.), 293. The right grows out of the relation of attorney and client, and the remedy is expressly limited to the client, not being available to the client’s "assignee. Nor
The only authority relied on by the defendant in error to support the proposition that one attorney can rule another for his fee is what was said in Smith v. Goode, 29 Ga. 185. That case was decided before the code, and is apparently opposed to the ruling in Whittle v. Newman, 34 Ga. 377, in so far as it permits anything in the nature of a rule by the attorney against the client. But the facts there were essentially and materially different from those in this case. That was in a proceeding in equity still pending, and the motion was treated as ancillary to the main bill. The money was still the property of the client. The attorney holding the same had never refused to deliver the fund to the client or to the associate counsel. He was not in contempt, nor had he done any act warranting the summary and drastic remedy provided for by the Civil Code, § 4416. Nor did he resist the motion to distribute, nor the right of the associate thus to collect the fee. The clients were made parties and alone made a defense. An analysis of the decision will show that the court, during the pendency of the bill in equity, in effect allowed the attorneys a speedy and summary enforcement of their liens on the fund raised by the litigation, and then in the hands of one of the counsel, who- was willing to surrender the same to the clients or to
Judgment reversed.
