12 Ga. App. 760 | Ga. Ct. App. | 1913
A rule was issued in the superior court of Jenkins county against an attorney,at law requiring him to show cause why he should not pay over to his client certain moneys which it was alleged he had collected for her. The petition alleged that the at
The execution on the lien foreclosure was issued on the ex parte affidavit of the attorney, and the judgment in that proceeding did not conclude the plaintiff on the question of the amount due. If the execution had been properly levied and the plaintiff had unsuccessfully contested the fairness of the claim for fees, as provided by section 3366 (6) of the Civil Code, or if he, after notice, had allowed Inis property to be sold without filing the counter-affidavit authorized by the statute, he would have been estopped. But here there was no lawful levy, and the plaintiff was not bound to contest the question of amount due. He has never had his day in court on this question. Under section 3366 the attorney had a right to control the judgment and fi. fa. in favor of his client to satisfy his lien for fees. It would have been the duty of the sheriff to pay over the money to the attornejq who would then have been authorized to retain the amount due him for fees. By foreclosing his lien and having summons of garnishment served on the sheriff the attorney acquired no greater right against his client than he would have had if the money had been made by the sheriff and paid over to him. The court erred in discharging the rule, and the case should be submitted to a jury on the issues raised by the answer and the traverse. _ Judgment reversed.