Speer v. Matthews , 78 Ga. 757 ( 1887 )

Hall, Justice.

R. A. Matthews, as the assignee of a fi. fa. in favor of Harvey W. Todd, administrator of Joseph Todd, deceased, caused it to be levied on the property of the defendant in fi.fa., Lemuel N. Dawson. The.property was sold and the money arising from the sale brought into court, when Judge Speer claimed that he had a lien upon it as the counsel who procured the judgment on which it was raised. The suit was originally brought by Messrs. Cabaniss & Peeples, and they represented the plaintiff until 1872, when they appear to have been absent from the court. At the spring term, 1872, Judge Speer represented the case in court, and the judgment upon which this fi. fa. issued was then obtained. This execution was issued in April, 1872. Judge Speer’s name appears to have been entered upon the docket of the superior court of Upson county as counsel for the plaintiff in the action. Oabaniss & Peeples’ names were also entered upon the docket. How the judgment was signed, we can only infer. The names of Cabaniss & Peeples appear on the back of the execution as attorneys representing the plaintiff, and no other name appears there. The judgment was not introduced in evidence. Shortly after this judgment was obtained, Cabaniss & Peeples turned it, together with other business they had, over into the hands of Joseph Gotten, Esq. an attorney residing in Thomaston. Mr. Cot-ten looked after this business. He kept the execution in life by causing the sheriff to make entries thereon. He knew no other parties connected with the transaction than Messrs. Cabaniss & Peeples, from whom he received it, and whose instructions he was carrying into effect. In the fall of 1885, Matthews applied to Gotten to purchase this fi.fa. Gotten negotiated terms with him, and the purchase was effected for a specified amount of money. Cot-ten did not transfer thefi./a., but he caused the administrator to get authority from the heirs dispensing with the necessity of an order of the court of ordinary to sell, assign or transfer this fi.fa., and Harvey W. Todd, the administrator, himself, under this authority, made the transfer.

The assignee of this fi. fa. does not seem to have had any direct communication with Todd. His negotiations for its assignment, as before remarked, were carried on with Gotten, who had the entire control of it, as the representative of Messrs. Cabaniss & Peeples. He was particular to inquire about the attorneys’ liens, and so far as Gotten knew, th % fi.fa. was not incumbered at all. He made that representation to Mr. Matthews, and upon it Matthews purchased th & fi.fa. at the amount for which those to whom it belonged had authorized its sale and assignment, paying therefor somewhere between four and five hundred dollars. Thefi. fa. was for a considerably larger amount. We do not understand that the judge who tried this case in the court below denied the existence of the lien of Judge Speer upon th & fi.fa. He simply determined that, under the facts of the case, he had no right to enforce that lien upon the fund brought into court by the assignee and against his right to the same, and we think the conclusion reached by him was correct.

Judge Speer did not appear as attorney of record. It is true, he proves that he was employed by Todd, but it does not appear that he was to take the place of Cabaniss & Peeples, who were the original attorneys; Cabaniss & Peeples were never dismissed from the control and management of the suit. During all this interval of time from 1872 to 1886, Judge Speer seems not to have concerned himself in the slightest degree about this fi. fa. He took no steps to keep it in life. If his name had appeared to the judgment that was rendered in this case, it is somewhat strange that that judgment was not introduced in evidence on the trial. It must have been signed, from what appears on the execution, by Cabaniss & Peeples, who when it was issued did at once assume the control of the fi,. fa.; they made arrangements to keep it in life, and turned it over to a vigilant, conscientious and cautious attorney practicing in that court. There is no dispute that Cotten made such representations as he believed to be true; that he had no notice of any claim of Judge Speer to an interest in this fi. fa.; and that he told Matthews, as he had a right to tell him, that there was no such incumbrance on the title to the execution. Matthews bought under these circumstances; he caused this execution to be levied; he raised fhe fund upon which this contention arises, and by his action brought it into court. The sum realized was wholly insufficient to discharge the debt in judgment, and when brought into court, he then learned for the first time that Judge Speer had any claim upon it. We think that Ootten was in this matter acting as the representative of all the parties having or claiming any interest in this, execution, by lien or otherwise ; at least, that Matthews had the right so to regard him; that they are all bound by the representations he made, whether they were true or not, and that the parties and attorneys in the case are estopped from interfering with the rights of this assignee, and from taking any part of the sum raised by the sale under execution. We therefore order the judgment affirmed.