Brown v. Georgia, Carolina & Northern Railway Co. , 101 Ga. 80 ( 1897 )

Atkinson, J.

The official report states the facts. Unless the plaintiffs in error were entitled, under paragraph 2 of section 2814 of the Civil Code, to a lien upon the original cause of action, which was the basis of the suit instituted by them in the first instance, they were not authorized in their own names to prosecute the second action which they instituted subsequently to the compromise effected by their client upon his own behalf with the defendant. That paragraph of the section above quoted provides, that-upon suits, judgments and decrees for money, attorneys at law shall have a lien superior to all liens except tax liens, and no person shall be at liberty to satisfy such suit, judgment or decree until the lien or claim of the attorney for his fees is fully satisfied; and attorneys at law shall have the same right and power over said suits, judgments and decrees, to enforce their liens, as their clients had or may have for the amount due thereon to them.

Statutes creating special liens in favor of particular individuals are in derogation of the common law, and are to be strictly construed. This being true, no lien attaches in favor of the attorney at law to the cause of action, but it only arises upon the institution of the suit. The lien, according to the language of the' statute, attaches to the suit only; and hence when for any reason the suit is finally disposed of, the lien is discharged. The settlement by the client with his adversary pending the original suit would not have had the effect to discharge the lien of the attorneys at law upon that suit, and notwithstanding the • settlement, they would have been entitled to prosecute it to judgment for the purpose of recovering fees. The plaintiff was entitled, however, under the law, to make such a settlement .affecting his own interest as he saw proper. The law, however, preserved his action and gave to the attorneys the power to prosecute that action for the recovery of their fees. Upon the trial of the suit first instituted, a nonsuit was awarded ; and inasmuch as they did not move the court to vacate the judgment ■of nonsuit and reinstate the original action, but elected instead to bring a new suit, the judgment of nonsuit was as effectual to •extinguish their right as though a final judgment upon the merits had been rendered against them. It ended that suit. When the second suit was instituted the plaintiff had no cause of action. That had been extinguished by the compromise with the defendant. The plaintiff having no cause of action, there-was nothing upon which to predicate a suit; and hence, in reply to the second suit, a plea of accord and satisfaction was a. good answer. The attorneys could have no right growing out-of the second suit, unless that right was predicated upon some-right of their client; and inasmuch as all of his rights had been extinguished by the compromise, no right accrued in favor of his attorneys. Their lien upon the original suit was-extinguished -by the judgment of nonsuit, and whatever would operate as a bar to the prosecution of the second suit by the client likewise bars them. It would be otherwise if the statute^ hereinabove referred to gave to the attorneys at law a lien upon the cause of action instead of a lieu upon the suit and the proceeds which might result from the prosecution of it. We conclude, therefore, that the trial judge committed no error in granting a new trial, he having improperly instructed the jury that the right- of the plaintiff’s attorneys to prosecute the second suit for fees was not barred by the compromise effected by the plaintiff and defendant pending the first one.

Judgment affirmed.

All the Justices concurring, except Cobb, J., disqualified.