Platen v. Byck

50 Ga. 245 | Ga. | 1873

McCay, Judge.

If the judgment against the garnishee was, in fact, improperly taken, there was no error in the refusal of the Court to set aside the order vacating it. It would be mere child’s play to re-establish the judgment on the ground that it was vacated without notice, and then vacate it because it was in truth illegally taken. As the judgment against the garnishee was in the nature of a judgment by default, for his failure to answer, it follows that if he had, from the plaintiff’s conduct, a right to believe it was no longer to be pressed against him, he was not in default. We think the facts show he had the best of reasons. He had the written agreement of the plaintiff’s attorney that if he would pay the full amount of his debt to Short, as ascertained by Short’s judgment against him, over to Short’s attorney, to be by him held to await the plaintiff’s judgment against Short, the garnishment should be dissolved. In good faith, and in pursuance and upon the authority of this agreement, the garnishee paid the money.

Had he a right to act upon this agreement of the plaintiff’s attorney ? Had he a right to assume, after he had. complied with his undertaking, to suppose the garnishment would be abandoned? and was he, therefore, not in default? We think he was not in default, that he had a right to treat this agreement of Mr. Harden as the agreement of the plaintiff, and having in good faith acted on it, he is discharged and the garnishment dissolved. Mr. Harden was the plaintiff’s agent. Under section 443 of the Code, (1868,) an attorney at law has a right to bind his client by such an agreement. The words are, “they have authority to bind their clients in any action or proceeding by any agreement in relation to the cause, made in writing, and in signing judgments and entering appeals.” This is a very broad authority, and, in our judgment, includes this case, to-wit: an agreement that the garnishee shall deposit the amount due to await the event of the suit brought by the attorney. But independently of this, the Judge was justified under the evidence in coming to the conclusion that the plaintiff was consulted about the matter, and that the agreement was with his concurrence, and with his approbation after it was done. True, the plaintiff himself says not, but Mr. Harden so testifies, and it was for the Judge to believe Mr. Harden if he thought his testimony the most reliable.

We think it would be a gross wrong on the garnishee to compel him to pay this money again after he has paid it under the orders of the plaintiff’s attorney. That the plaintiff has not got his money is not Byck’s fault. Whether the person into whose hands it was paid has properly kept it or disbursed it, is not now the question. If he has not, the plaintiff has his remedy. He, the attorney, is an officer of Court, and it would be a violation of his duty, as an attorney, not to have tbe money as tbe agreement provides. It is no answer to say that Mr. Harden acted unwisely, or even corruptly in making this agreement, unless Byck was a party to or had knowledge of the corruption. Mr. Harden was the plaintiff’s chosen agent, and be must abide by his agent’s acts within the scope of his authority. We do not say Mr. Harden acted improperly. Indeed, so far as tbe record shows the facts, the agreement seems to have been a very proper one to have been made, and at the time, apparently very much to the plaintiff’s interest.

Upon the whole, we affirm the judgment, leaving open to the plaintiff to compel the attorney who received the money to be called on by the Court to account as an attorney at law for this money, received by him as such, in trust to answer the plaintiff’s judgment. As it appears to us, he has charged a very heavy fee, and if the plaintiff pleases he can call him, to account for the use of the trust he undertook.

Judgment affirmed.