Gray v. Conyers , 70 Ga. 349 ( 1883 )

Jackson, Ohief Justice.

This was the trial of a rule against the attorney employed by the former administrator upon an estate, brought, by the administrator de bonis non on the same estate, calling upon the attorney to pay over funds in his hands belonging to the estate and collected by the attorney while in the employment of the former administrator.

Under the ruling of the court, applied by the jury to' the facts proved, a verdict was rendered for the plaintiff for the sum collected with twenty per cent damages per annum from the time of demand on the attorney, and refusal to pay said principal.sum and interest to that date.

A new trial was refused, and the attorney excepted; and assigns for error here the refusal of the new trial on various grounds alleged in the motion therefor.

When analyzed, the legal grounds pressed before us amount to these. That rule is not the remedy at all; that if the remedy, the court of ordinary and not the superior court would have jurisdiction to rule the attorney in this case; that the plaintiff in error was the attorney not of the estate, but of the former administrator; that hence the relation ceased with the discharge of that administrator ; that allegations in the petition by the heirs at law to discharge the former administrator and to appoint another, on the ground that the former administrator had loaned the money collected by this attorney to the attorney himself, or had confided it to him as surety on the administration bond, bound the administrator de honis non and estopped him from ruling the attorney for the same money as attorney at law; that since the verdict he, the attorney, had tendered the principal and interest on the sum 'collected, deducting fees, etc., and that a new trial should be awarded, because the administrator de honis non had refused that tender; and that a new trial should be granted, because the judgment was entered up for twenty per cent damages.

1. This case was before us on a writ of error to a judgment of the superior court, or rather the chancellor, denying the application by the administrator de honis non for a writ of ne exeat to restrain the attorney from leaving the state pending this rule before the superior court. So that many of the assignments of error now made and pressed here were necessarily and really decided then. So far as they were so ruled, the case, being between the same parties, is res adjudieata. Necessarily to tbe grant of the ne exeat to prevent the attorney from leaving the state pending this same rule, it must have beer* held that he could be ruled for it that rule was the remedy that rule before the superior court was the proper particular remedy, that court having jurisdiction; that the attorney was the attorney of the estate, and liable to its representative on a rule ’or the money collected for it. and that it could not be retained, either to force fees out of the estate, or to hold it as security to indemnify the attorney for any losses he might sustain as surety for the former administrator. See 67 Ga., p. 329. There it is distinctly ruled that, though •‘the attorney was also one of the sureties of the former administrator, and having been ruled by the administrator de lonis non for the money, answered that he had offered to pay it if his fees and those of associate counsel employed by the former administrator were allowed, and that he no longer held the money as an attorney, but to save himself as surety on the bond, he having paid the money to the former administrator who returned it to him for that purpose.” Yet, notwithstanding these facts, it was ruled that, “ the respondent ought to pay the money collected for the estate to him whom the law clothed with authority to receive it. His reasons for refusing to pay are not all sound in law. If, as he claims, some few hundred dollars’ worth of fees are due him, * * * the extent to which equity will permit him to go is to retain enough to pay those fees, but surely he should not keep the several thousands he has of tire money collected fc?r this estate, in order to force it to a settlement of his fees,” etc. “Nor will it allow him,” the court goes onto say, “to retain the funds of the estate collected by him in order to indemnify himself as surety of the administrator, whether the former administrator, whose surety he was, agreed thát he might do so or not,” etc.

Further on the court go on to say that these defences are a “ thin veil,” and they are distinctly held to be untenable as defences to the rule, — this identical rule then pending for trial, and which has been tried, and is here now on a motion for a new trial.

So that the points, that a rule before the superior court is a legal remedy to get this money from this attorney, and that his retention of it, either to secure his fees or to indemnify himself as surety of the administrator, with his assent and by his agreement, is no defence to the rule, are expressly adjudicated in a case between these same parties and on this same subject-matter, and must be res adjudicata, if anything can be.

2. The point, too, that the recitals in the petition of the heirs at law, of such an agreement between the attorney and the former administrator would bind the present administrator cle bonis non, must fall for the same reason. This court held in this case, when here before, that such an arrangement would not be a valid defence to the rule. If not a defence to the rule, oui bono is the evidence of it either admissible, or sound and valid when admitted ? But if a new question, we should hold that no representation •of the heirs at law, in judioio or otherwise, would bind the administrator de bonis non, for the simple reason that he is no party to the proceeding, nor is he privy to it. He represents creditors as well as heirs. Are the creditors concluded by admissions of the heirs at law? . No moréis their representative. True, his appointment could not have been made if the place had not been vacated, but the judgment vacating the office is distinct from that filling it when vacated; and the reasons given or recitals made for the purpose of vacating it are equally distinct from the judgment filling the vacated office, and the reasons or recitals or qualifications of the new appointee which caused his appointment. The one caused the appointment of a particular person; the other made a place vacant to be filled by anybody.

3. The judgment for twenty per cent, damages is no ground for setting aside the verdict and granting a new trial on the facts. It is no exception to the verdict, but to the judgment, as illegal in not being authorized by it. It is incorporated in the motion for a new trial as one of rhe amendments thereto, and it is not a motion in arrest of the judgment. But if it were, we see no error in it. The Code explicitly makes that rate the legal interest from the demand by the client, and the verdict gives the legal interest. Code, §3950; 14 Ga., 584.

4. The verdict is plain and covers every issue.

5. The question of the allowance of fees was for the jury. They were disallowed as charges upon the estate. We cannot say that it was contrary to law to disallow them as such charges. Fees to collect money by counsel are hardly payable, if the money be not paid over when collected and demanded, without legal reasons therefor; and of the validity of those reasons the court and jury will determine on the trial, upon the law and facts of the case. It will do the client little good to collect and not pay over. To force him to litigate to get the money from his lawyers is to make him incur fees to other lawyers, and he ought not to pay both.

These principles cover the issues made by the motion for a new trial, and the errors assigned here thereon.

The result may bear hardly on the counsel of the former administrator, but the counsel must look to that administrator personally for remuneration for services rendered for his personal benefit. The estate ought not to pay for services to an administrator to prevent his removal, or for advice which led to that result, or for money collected which it was forced to litigate in order to realize.

Taking the whole case together, and applying to the facts the principles of law ruled in the ne exeat between the same parties, and the principles -equally clear which apply to points not then ruled, we do not see such errors as will authorize this court to set aside the verdict approved by the presiding judge and to award a new trial on the facts.

Judgment affirmed.

Cited for plaintiff in error: 1 Har. & Wol., 310; 3 Adol. & El., 129, 22 Tex., 327. Code, §§417, 3627, 2537; Weeks on Attorneys, 143 et seq., 5 Ga., 56; 6 Ib., 432; 9 Ib., 150; 57 Ib., 528; Code, §§2543, 1889, 406, 1253; Greenleaf Ev., 41; 19 Ga., 582; 54 Ib., 508.

For defendant: 11 Ga., 331; 58 Ib., 221; 5 Denio, 640; Weeks on Attorneys, 268; 1 Sug. on Pow., 214; 2 Wms. Exrs., 906; 1 Story Eq., 296; 47 Ga., 73 ; 4 Russel, 272; 47 Tex., 130; 26 Conn., 213; 11 Wall., 484; 4 Barn. & Ald., 47; Weeks, 94; 24 Ga., 561; 57 Ib., 313; 64 Ib., 205.