Martin v. Throckmorton , 1901 Pa. Super. LEXIS 401 ( 1901 )

Opinion by

W. D. Porter, J.,

The answer of a garnishee is not to be construed with the same strictness as an affidavit of defense, but where such answer contains either a distinct admission of funds in possession, or of such facts as leave the possession of such funds a mere inference of law, the proper course is to enter judgment against the garnishee upon his answer. In this case the answer of the garnishee admits that at the time of the service of the writ he had in his hands the sum of $1,666.58, which amount he had received as the attorney of the defendant in a certain proceeding in partition to which she was a party. The garnishee claims that he is entitled to certain deductions from said amount for credits upon his account, which credits are in the answer spe- . cifically set forth. The answer leaves no doubt as to the facts upon which the garnishee founds his claim for the various credits set up in his answer. The credits claimed by the garnishee are capable of distinct classification : 1. For his fees as counsel and costs paid by him in the particular case in which he received the money now in his hands. 2. His fees as counsel for services rendered the defendant in her capacity as guardian of certain minor children of Joseph W. Thockmorton, and costs paid for her in such representative capacity; such services being rendered and costs paid prior to the service of the writ in this case. 3. The sum of $750 paid to the defendant subsequent to the service of this writ. 4. For his services as counsel for the defendant in this attachment proceeding ; making no claim for any expenditure to which he was put as garnishee. 5. For his services a,s counsel of the defendant in her capacity as guardian, as aforesaid, in a distinct and independent proceeding, rendered after the service of the writ.

It is clear that the garnishee had the right to retain out of the money in his hands compensation for the services rendered by him as counsel in the particular proceeding in which he received that fund, together with the amount of the costs by him in that proceeding expended: Balsbaugh v. Frazer, 19 Pa. 95. We must, therefore, deduct from the fund $200 counsel fees, and $32.50 costs paid in that proceeding. It is well settled that he who as an attorney at law has in any proceeding collected money for his client cannot set off against his client’s claim for that money a claim due him for services as counsel in any proceeding other than that out of which the money came, unless the client has expressly agreed that the fund shall be so appropriated. An attorney cannot retain out of the money collected for his client,, as an individual, compensation for his services rendered to the client as a trustee, without establishing an agreement upon the part of the client that the money should be so retained. There is fairly implied, from the nature of the relation sustained, an undertaking not to plead a set-off, but to account and pay over whatever money may come into the hands of the attorney in the character in which it is received: Russell v. First Presbyterian Church, 65 Pa. 9; Turnpike Road Co. v. Watson, 1 Rawle, 330; U. S. Bank v. Macalester, 19 Pa. 475; Simpson v. Pinkerton, 10 W. N. C. 423.

The answer of the garnishee does not allege that the defendant had agreed that his compensation for services as counsel in other proceedings, or those rendered to her in her distinctive character of guardian, should be retained out of the fund in his hands, and it, therefore, follows that he would not have been entitled to retain such compensation as against the demand of the defendant. He could not have set off these claims as against his client at the time the writ was served upon him, nor when he filed his answer, and what the client could demand the garnishee is certainly entitled to recover. This renders it unnecessary to consider the allegation of the garnishee that the judgment was entered by collusion between the plaintiff and the defendant, in order that the plaintiff might collect money which the defendant could not have compelled the garnishee to pay. The amount received by the garnishee was $1,666.58. The amount of counsel fees and costs which upon the face of his answer he was entitled to set off against his client’s claim to this money was $232.50, leaving to be accounted for the sum of $1,434.08. The answer alleges that the garnishee paid to the defendant, after the service of the attachment and with the consent of the plaintiff, the sum of $750. This allegation if it stood alone would certainly be sufficient to prevent judgment if it was necessary to take that $750 into consideration ; but the answer goes further and attaches a letter which it is alleged embodies the consent of the plaintiff to the payment of that amount. An inspection of that letter makes it clear that the plaintiff did not give the consent of which the garnishee seeks to take advantage. The attorney for the plaintiff simply wrote, “ I do not object to your making payment to the defendant if you think proper, as long as you have funds to meet the attachment if sustained.” This was practically a notice to the garnishee that the latter might pay at his own risk, and that the plaintiff intended to stand upon his legal rights. In order to charge the defendant, however, upon his answer for the full amount of the judgment which the court below entered against him, viz., $681.45, it was not necessary to take this $750 into consideration. The net amount in the garnishee’s hands, after deducting his fees and costs, was $1,434.08. Deduct from this the $750 alleged to have been paid by agreement of all the parties, and we have remaining the sum of $684.08, which is more than sufficient to cover the amount of the judgment which the defendant is called upon to pay.

The judgment is affirmed.