Hasty v. Grimes , 96 Ga. App. 145 ( 1957 )

Gardner, P. J.

The sole question for this court to determine is whether or not the trial court erred in denying the rule absolute and discharging Sheriff Grimes. Counsel for the plaintiff call our attention to Code §§ 24-206 and 9-606. Code § 24-206 reads as follows: “If any sheriff, coroner, justice of the peace, constable, clerk of the superior court, or attorney at law shall fail, upon application, to pay to the proper person or his attorney any money he may have in his hands, which he may have collected by virtue of his office, the party entitled thereto or his attorney may serve said officer with a written demand for the same; and if not then paid, for such neglect or refusal the said officer shall be compelled to pay at the rate of 20 percent per annum upon the sum he has in his hands, from the date of such demand, unless good cause is shown to the contrary.” Code § 9-606 reads: “Without special authority, attorneys cannot receive anything in discharge of a client’s claim but the full amount in cash.” Counsel call our attention to Patterson v. Childs, 9 Ga. App. 646 (1) (72 S. E. 45) where it is held, “ ‘Payment of money due to the creditor or his authorized or general agent, or one whom the creditor accredits as agent though he may not be so, or to his partner interested with him in the money, shall be good; and if such agent receives property other than money as money, the creditor is bound thereby.’ Civil Code (1910), § 4311; McLaughlin v. Blount, 61 Ga. 168; Holmes v. Langston, 110 Ga. 861 (6) (36 S. E. 251). The rule is different as to attorneys at law; they cannot, without special authority, receive anything in discharge of the client’s claim but the full amount in cash. Civil Code (1910), § 4956.” Counsel also cites John Bean Mfg. Co. v. Citizens Bank of Gainesville, 60 Ga. App. 615 (4 S. E. 2d 924). It will be noted from the Code sections and the appellate court decisions called to our attention by counsel for the plaintiff that those authorities have no bearing on the case at bar for the reason that no minor was involved in any authority cited. Where minors are involved the germane purpose of the proceeding is to protect the interest of the minor. In Nicholson v. Wilborn & McWhorter, 13 Ga. 467, it was held that an infant is not bound by the appearance of his attorney. He must appear by next friend or guardian. In that case the Supreme Court said: “Generally, an infant cannot appear by attorney, but must appear by a guardian ad litem, appointed for. that purpose by the court, and the appointment of a guardian ad litem, is a power incident to all courts.

“Where suit is instituted against Baron and Feme, the wife being an infant, she must appear by guardian in all cases,' where she has a separate estate, or where, on any other account, her defence may be distinct from that of her husband.

“A rule or order for the admission of a guardian ad litem, must usually be applied for by the minor, before pleading, .and a copy of the-order appointing him, ought to be annexed to the plea, or recited in it. But, if the minor has appeared by-attorney, upon,, at any time, ascertaining that the defendant is a minor, the plaintiff may move to strike out the appearance by attorney, and for the appointment of a guardian ad litem; and if the defendant fails, within a time limited by the court, to name a guardian, the plaintiff will be at liberty to name one; and he will, thereupon, be appointed. And similar proceedings may be had where the minor has failed to appear at all.

"If an infant appear by attorney, it is error in fact, and a judgment entered against him on such appearance will be revoked upon writ of error, coram nobis.” In Betts v. Hancock, 27 Ga. App. 63, 65 (107 S. E. 377) this court said: “No part of the money received by the attorneys of record or by the prochein -ami, and ‘no property which is purchased with such consideration/ ever having been turned over to the minor, and no such money or property having been received by him and retained after reaching his majority, he is not estopped from pursuing his rights under the execution. .

Payment by Sheriff Gi’imes to counsel would not protect the sheriff. It follows that if he is not protected in paying out the money, he cannot be compelled to make the payment of the monejn

Judgment affirmed.

Carlisle, J., concurs. Townsend, J., concurs specially.