107 Ga. 479 | Ga. | 1899
An equitable, petition was brought to the July term, 1895, of Floyd superior court, by R. T. Armstrong in his lifetime against J. King and the Merchants National Bank of Rome, Ga. Pending the suit the plaintiff died in August, 1896, and Janie W. Armstrong, his executrix, was duly made a party plaintiff. The defendants filed their answers, and the case was referred to W. T. Turnbull as auditor, with directions that all questions of law and fact involved therein be submitted to him for investigation and report, and that he make a separate report as to law and facts respectively, with his findings thereon. On June 8, 1897, the auditor filed his report to the court. Exceptions both of law and fact were filed on the part of the plaintiff, but the same were, after consideration, stricken and overruled by the court, and, upon motion of defendants’ counsel, a final decree was rendered in the cause, signed by the judge of the court. To the granting of this decree the Merchants National Bank, plaintiff in error, excepts and assigns the same as error. For assignments of error it is alleged: (1) “ The eighth paragraph of said decree is error, in that it failed to set up and establish a lien for the sum
It seems to be generally recognized by the courts, both in this country and in England, that attorneys have by virtue of the common law a lien for fees upon property in their hands recovered for their clients. Such a lien has been recognized as existing upon notes, bonds, and other papers of a client in the possession of his attorney for collection or other professional service; but, technically speaking, this is not so much a lien upon such papers as an equitable right which the courts recognize in the attorney to retain such choses in action until his. fees for professional services are paid. S.uch a lien did not exist at common law, however, upon suits brought for clients, or upon judgments, awards, or decrees obtained for them; but. the common-law rule has been recognized as extending the attorney’s lien not only to proceeds in the hands of the attorney collected for the client, but also to such funds or assets- in the hands of the opposite party or in the custody of the court and subject to its equitable jurisdiction. It has accordingly been held that “where a fund is brought into a court of equity through the services of an attorney, who looks to that alone for his compensation, although his interest can not technically be called a lien, he is regarded as the equitable owner of the fund to the extent of the reasonable value of his services, and the court administering the fund will intervene for his protection, and award him a reasonable compensation to be paid out of it.”' 3 Am. & Eng. Enc. L. (2d ed.) 458, and authorities cited in note 5. We do not understand, however, counsel for plaintiff in error to deny the existence of the lien claimed by the attorneys in this case, provided the facts alleged in their petition are-true. The lien of attorneys in such matters is definitely fixed by statute in this State, and has been repeatedly recognized by decisions of this court. Civil Code, § 2814; Fry v. Calder, 74 Ga. 7; Lovett v. Moore, 98 Ga. 158; Coleman v. Austin, 99 Ga. 629. But we gather from the grounds of the demurrer filed h> the intervention that it is insisted by counsel for plaintiff in error, that attorneys representing a defendant in a case can not in this way enforce their lien against their client; that they can not,
In the case of Hunt v. McClanahan, 1 Heiskell (Tenn.), 503, it appeared that the attorneys had recovered or saved certain land for their client, and they filed an application to the court asking that a lien on the land be declared in their favor for' fees, alleging that their client was insolvent or in embarrassed circumstances, and had moved to a distant State. It was there decided as follows: (1) “ Attorneys, solicitors, and counsel have a lien upon property recovered or protected, for their services, which may be declared by order in the case in which the services are rendered.” (2) “The client can not, while the suit is pending, so dispose of the subject-matter in suit as to deprive the attorney of his lien, nor afterwards to any purchaser with notice.” (3) “The pendency of the suit is of itself notice to all persons, and the lien may be preserved and notice of it extended by stating its existence in the judgment or decree.” In the case of Adams v. Fox, 40 Barb. 442, it appeared that the attorneys represented the defendant in a suit that had been referred to a referee, and recovered on their client’s counter-claim against plaintiff a money judgment. It was held that “The attorney, by virtue of his lien on the judgment, may take the money in transitu, if he can lay hold of it. If he applies to
Judgment reversed, with direction.