Langston v. Roby

68 Ga. 406 | Ga. | 1882

Jackson, Chief Justice.

The question made in this case is, can a judgment juni- or by three months to another be set off against the other so as to extinguish counsel fees, or a lien for counsel fees upon the senior judgment, the senior judgment being rendered in a suit for tort, and the junior judgment on a cause of action arising ex contractu ?

The judgment ex contractu could be set off to that ex delicto between the parties themselves, beyond all doubt; because the statute does not make the character of the judgment a condition to the right of set-off. The statute is, “ one judgment may be set off against another, on motion, whether in the hands of an original party or of an assignee.” So, if the two judgments be for money, it makes no difference what may have been the character of the right of action on which either was rendered. Nor between those parties would it matter which was senior' or junior; for' the statute is broad, and without reference to date, allows the one, on mere motion, to be se't'off against the other. Even if transferred, and the original parties be no longer at issue, but an assignee be pressing either, still, on motion, the set-off will be allowed ; for the statute is explicit that it may be done, “ whether in the hands of an original party or an assignee.”

If, therefore, in this case, the counsel claimed that there cóuld' be no set-off because they were assignees of the judgment against which the other was to be set off, the statute would meet them in its explicit declaration that the assignment made no difference. As assignees they stand on no higher ground' than if they had been the original plaintiffs, and it had been moved to set off a judgment against themselves.

So that they invoke their lien for fees upon the judgment which they obtained as counsel, and say that this lien attached to the judgment under section 1989 of the Code, and, therefore, the junior judgment could not be set off as to them.

By the statute of February, 1873, codified in that secion, upon a moneyed judgment or decree, the lien is on that judgment or decree ; upon a judgment or decree for property, it is on the property recovered. We deal in this case with judgments for money; and the statute enacts in respect to them that “ they (the attorneys) sháll 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 thé 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.”

This is a lien on the judgment. Whatever the judgment is worth to that it attaches. Whatever the judgment covers, that the accompanying lien covers also. It extends to nothing over which the lien of the judgment does not extend, and the lien of the judgment does not extend over a judgment which the defendant to the first judgment holds against the plaintiff thereto. The two judgments are of equal dignitjh The one extinguishes the other to the extent that its nominal value goes. To that extent it satisfies it by operation of law, and a motion in court applies that extinguishment or satisfaction to it. No person can do it as against the lien of these fees ; but the law can, and the court, on motion, can and does, by applying the law to the case. The defendant cannot satisfy it, by compromising or paying it or buying it; but if he has a legal defence to it, other than his act of paying, or compromising, or purchasing it, he may set up such defences. The attorneys “ have the same right and power” over the judgment, “ to enforce their liens as their clients had or may have,” no more no less. In the hands of their clients the judgment was subject to the defence of the set-off of another judgment, older or younger, founded on contract or tort. In the hands of the attorneys it is subject to the same defences. The defendant in execution may not satisfy it so as to defeat this lien by any arrangement with the plaintiff, but he may bona fide defend against the attorneys just as fully as against their clients, the original plaintiffs.

Suppose the judgment proposed to be' set off Were the senior, how unjust Would it be to make the PWner of that judgment pay ohe junior to it, Wheti he held his own for a larger amount, ahd cohid not make á cent out of it except by setting it off against an insolvent, as is the case here — the other party being insolvent! It would be tó make him pay his adversary’s lawyers. What difference does it make if his judgment be junior? The statute makes none. If the junior judgment in such a case had been obtained by collusion with the other party to carry out a settlement in order to defeat the lien of the attorneys, then, indeed, there might be a difference, and neither law nor equity would tolerate the fraudulent collusion to defeat the lien. If the fraud be perpetrated by a judgment, it makes no difference;, for fraud vitiates all contracts, and creditors or bona fide purchasers may attack a judgment for fraud or collusion wherever it interferes with their rights, either at law or in equity. Code, §§3596, 2751.

But there is no pretence here of any collusion between these parties to defeat the attorneys. On the contrary, it looks more like an effort to enable the attorneys of an insolvent client to make their fees out of his solvent adversary ; and the client, so far as appears in the record, is quite willing that it be done.

Justice, therefore, accords with our view of strict law, and the judgment must be reversed on the ground that the court erred in not allowing the set-off of the one judgment against the other.

Judgment reversed.

Cited for plaintiff in error: Code, §§3467, 3597; 49 Ga., 254 6 Ib., 515; 2 Ib., 155; 1 A. K. March., 510; 3 Paige, 365; 1 Binney, 429; 32 Ga., 302; 27 Ib., 432; 48 Ib., 431; 5 Ib., 361; 9 Ib., 397.

For defendant: Code, §§2902, 3467 ; 41 Ga., 260; Code, §1989; 36 Ga., 629; 39 Ib., 310; 50 Ib., 599; 41 Ib., 320, 691; 45 Ib., 169; 48 Ib., 431; 51 Ib., 94; 46 Ib., 424, 434.