98 Ga. 548 | Ga. | 1896
On April 18, 1893, a suit of which the present suit is a renewal, was brought against the administrator of RutherT ford to recover a certain sum alleged to have been received by the intestate on March 1, 1883, from one Franklin, in settlement of a suit of the plaintiffs in which Franklin was defendant and in which the intestate represented the plaintiffs as an attorney at law. The declaration was demurred to on several grounds, the main ground being that it was barred by the statute of limitations. The demurrer was sustained, and the plaintiffs excepted:
It appears from the declaration, that the plaintiffs refused to ratify the settlement in pursuance of which the money sued for had been paid to Rutherford, and that a suit to set aside the settlement was instituted by them on February 11, 1889, which suit resulted, on March 1, 1891, in a verdict in favor of the defendants therein. On the day on which this verdict was .rendered, Rutherford died. It further appears, that on March 9, 1883, two days after the money was collected by Rutherford, “he promised in writing that he would pay over to the petitioners said money after he had paid certain contingent fees due and owing to certain local counsel whom he had employed to assist him
It is true, a subsisting, recognized and acknowledged trust is not within the operation of the statute of limitations; but this rule applies only to those technical trusts which are cognizable alone in a court of equity (Code, §3196; 2 Wood, Limitations, §200; Douglas v. Corry, 15 Am. State Rep. 604, and cases cited); and the relation of an attorney to his client where the attorney retains in his hands money collected for the client does not constitute such a trust. In the case of Southern Star Copper Lightning Rod Company v. Cleghorn, admr., 59 Ga. 782, it was said'' by Bleckley, L, “An attorney’s possession of the money of his client is more like that of a mere agent or bailee. It would be deviating from the ordinary use of language to call the client’s money trust property; and the sole duty of the attorney in respect to it is to pay it over. He has no right to control and manage it as a trustee in possession. In this regard his powers do not extend beyond those of an attorney in fact appointed to collect; the latter is not a technical trustee. 12 Ga. 9. Prior to the code the rank of a claim against a deceased attorney at law for money collected in his lifetime was on a par with bonds or other obligations. 14 Ga. 379. We think it has not been advanced. If it was, all deposits and bailments (where conversion has followed) have undergone a similar advancement, for in a general sense they are all trusts.” In Wood on Limitations (2d ed.), §18, p. 54, it is said: “The liability of an
In the present case it appears that the plaintiffs had notice of the collection within two days after the money was received by the defendant’s intestate; but instead of authorizing the payment of fees of counsel from this fund, as proposed or promised by the defendant’s intestate, the plaintiffs refused to ratify the settlement, and brought suit to have it set -aside. It cannot be said, therefore, that there, was any trust to apply the money for the purpose stated. And it is •■clear that a repudiation of his act in collecting the money will not stop the running of the statute, especially when the result of the proceeding to set aside the settlement was to sustain what had been done by the attorney, and when, so far as appears, there were not even plausible grounds for such a proceeding.
The statute of limitations is a statute of repose, and it would seem that if there is any case to which the statute should apply, it is a case like this, where parties for whom .an attorney has collected money wait for six years, with full knowledge of all the facts, before taking any steps to liav.e the action of the attorney declared not binding upon them, and for ten years and until the attorney’s lips are ■sealed in death, before bringing an action to recover the money collected.
All actions upon contracts not in writing, whether ex
Judgment affirmed.