13 Ga. App. 259 | Ga. Ct. App. | 1913
It is not necessary to deal with the question whether a defendant who denies that the garnishee owes him anything, and denies that the garnishee has any of his money or effects in possession, can except to the answer of the garnishee or traverse it. This point is raised by one of the demurrers filed by counsel for the plaintiff in error, but a ruling upon the exceptions and traverse filed by the defendant Smith is unnecessary, in view of the fact that the trial judge very properly held that the controlling question in the case was whether the contingent interest of an attorney in a debt due by a third person to one of the attorney’s clients can be impounded by a proceeding in garnishment at the instance of one who is a creditor of the attorney, but who is not a creditor of the particular client of his in whose favor the judgment was rendered. We think the trial judge correctly held that the summons of garnishment was ineffectual to impound Mr. Smith’s interest in the judgment against the Seaboard Air-Line Railway and in favor of Mrs. Randolph, whatever that interest might be, so that the amount represented by this interest could by appropriate judgment against the garnishee be applied in payment of the judgment in favor of Wiley Rice’s estate. If this be so, it is immaterial what steps were taken as to the giving of a bond to dissolve the garnishment; nor would it make any difference to whom the Seaboard Air-Line' Railway may have paid the money.
Counsel for the plaintiff in error insists that the whole matter should have been submitted to a jury. Even if the contention of counsel for plaintiff in error, to the effect that the defendant had no right to file either exceptions or traverse, is correct, there was nothing to submit to a jury. Certainly it can not be questioned that the plaintiff had the right to traverse the answer of the Seaboard Air-Line Railway, and she 'attempted to do so, but, after all, she did not deny any statement of the answer of the railway company, except as to the proportion of Mr. Smith’s alleged interest in Mrs. Randolph’s recovery. The fact' that the verdict rendered against the railway company was in favor of Mrs. Randolph and not in favor of Mr. Smith was undisputed. The first question pre
But aside from this view, the judgment of the lower court was right because an attorney at law, where his fee as attorney for the plaintiff is payable by special contract out of the proceeds of the suit, has merely an inchoate lien. Twiggs v. Chambers, 56 Ga. 279; Coleman v. Ryan, 58 Ga. 135; Rodgers v. Furse, 83 Ga. 123 (9 S. E. 669); Swift v. Register, 97 Ga. 448 (25 S. E. 315). The attorney’s lien is inchoate as soon as the action is commenced. Rodgers v. Furse, supra. That it is essential to show the right of the plaintiff to recover, before the lien can be perfected or established, is pointed out in the Swift case, supra. Even after judgment the attorney who recovered the judgment has only a lien. This lien can not be disregarded by the debtor who has notice of the lien, either before or after judgment; but it is, after all, but a lien. Civil Code, § 3364. Judgment affirmed.