Haygood v. Haden , 119 Ga. 463 ( 1904 )

Lamar, J.

Attorneys who retain in their hands the money of their clients are liable to rule. Civil Code, § 4416. The remedy is penal in its nature, and must be strictly construed. Banks v. Cage, 1 Howard (Miss.), 293. The right grows out of the relation of attorney and client, and the remedy is expressly limited to the client, not being available to the client’s "assignee. Nor can the attorney rule the client, though the latter has possession of the fund created by the counsel’s services, and for which he has a lien. Whittle v. Newman, 34 Ga. 378. Nor is a rule intended as a means of enforcing the attorney’s lien. Ibid. Here the proceeding was brought by one attorney against his associate, for the purpose of compelling a division of the fee collected, there being between counsel an agreement that it should be equally divided. The client is not proceeding, and it is not alleged that the defendant “ retained the money of the client,” so as to bring the case within the terms of the Civil Code, § 4416. Nor is the case within, the provisions of the Civil Code, § 4047, par. 4, that “ every court has power . . to control, in furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it, in every matter appertaining thereto.” For here not only had the litigation ended, but the rule was instituted in the superior court of Macon county, whereas the suit in which the collection is alleged to have been made was prosecuted and terminated in Irwin county.

The only authority relied on by the defendant in error to support the proposition that one attorney can rule another for his fee is what was said in Smith v. Goode, 29 Ga. 185. That case was decided before the code, and is apparently opposed to the ruling in Whittle v. Newman, 34 Ga. 377, in so far as it permits anything in the nature of a rule by the attorney against the client. But the facts there were essentially and materially different from those in this case. That was in a proceeding in equity still pending, and the motion was treated as ancillary to the main bill. The money was still the property of the client. The attorney holding the same had never refused to deliver the fund to the client or to the associate counsel. He was not in contempt, nor had he done any act warranting the summary and drastic remedy provided for by the Civil Code, § 4416. Nor did he resist the motion to distribute, nor the right of the associate thus to collect the fee. The clients were made parties and alone made a defense. An analysis of the decision will show that the court, during the pendency of the bill in equity, in effect allowed the attorneys a speedy and summary enforcement of their liens on the fund raised by the litigation, and then in the hands of one of the counsel, who- was willing to surrender the same to the clients or to associates as directed by the chancellor after notice and an opportunity to the real parties to be heard.

Judgment reversed.

All the Justices concur, except Simmons, O. J., absent, and Fish, P. J., disqualified.