138 Ga. 539 | Ga. | 1912
J. J. Strickland filed a petition to the superior court of Babun county, to foreclose his lien as an attorney at law upon a tract of land in that county. In his petition he alleged, inter alia, that he was employed as an attorney at law by B. L. Moss and A. K. Childs to recover the land, that the suit was successful, and that he recorded his lien as provided by the statute; that A. K. Childs had died, and that W. L. Childs and D. C. Barrow had been appointed his executors. The prayer was for the foreclosure of the lien, and for process against Moss and the executors o’f Childs, alleged to be residents of Clarke county. Process was issued by the clerk, and the defendants were personally served with copies of the suit. A judgment was entered foreclosing the lien, and fi. fa. issued thereon. To the levy of the fi. fa. Moss, one of the defendants, interposed an affidavit of illegality. This was dismissed on demurrer, and Moss excepted.
Let us apply, these principles to the case in hand. The petition was filed to the February term, 1908, of the superior court of Babun county, to foreclose an attorney’s lien against land located
A proceeding to foreclose an attorney’s lien upon real property is to be brought as is a proceeding to foreclose a mortgage upon land. Civil Code, § 3364, par. 3; McCalla v. Nichols, 102 Ga. 28 (28 S. E. 988). Statutory foreclosure of a mortgage on land is by petition to the superior court of the county wherein the land lies. Upon filing the petition the court shall grant a rule directing the amount due on the mortgage to be paid into court on or before the first day of the next term immediately succeeding the one at which such rule is granted, which rule must be published once a month for four months, or served personally on the mortgagor, his special agent, or attorney, at least three months previous" to the time at which the money is directed to be paid into court. Civil Code, § 3276. In proceedings to foreclose an attorney’s lien the process is a rule -nisi issued by the court, and not a process issued by the clerk as in ordinary eases. The clerk was without authority to issue the process he issued in this case. In the first place, the statute prescribes that the defendant is to be brought into court by a process issued by the judge. That process is essentially different from the process which the clerk is authorized to attach to petitions. It issues in term time, and the defendant is directed to.pay the money into court on or before the first clay of the succeeding term; and it must be served by publication once a month for four months or by personal service at least three months before that time. The ordinary process which a clerk is authorized to attach to a petition is one directed to the sheriff, requiring the appearance of the defendant to the return or appearance term of the court (Civil Code, § 5552), at which term the defendant may demur or plead, and final judgment on the merits is taken at the next term. Then again, the process issued by the
Judgment reversed.