Young v. Harris

Evans, P. J.

On March 25, 1916, A. H. Neal and others, as citizens and taxpayers, for themselves and on behalf of other citizens and taxpayers, brought a.petition to the superior court of Walker County, against John C. Young and others as commissioners of roads and revenues of Walker County, the City of LaEayette and the mayor and council thereof, the Little-Cleckler Construction Company, the Horn-Brannon Company, and T. H. Payne & Company, as defendants, .to enjoin the execution of certain contracts for the building of a court-house. Petitioners asked that these contracts be declared illegal and be canceled; and that the board of roads and revenues be restrained from levying taxes for the purpose of carrying out the contracts, etc. Certain plaintiffs, who joined in the case, employed, with other counsel, E. T. Wright, Esq., and agreed to pay him a fee certain, and an additional fee in the event they prevailed on the trial of the case. This petition was presented to Hon. A. W. Eite, judge of the superior courts of the Cherokee Circuit, who issued a rule to show cause why a temporary injunction should not be granted. In the rule nisi Judge Eite stated that he assumed jurisdiction on account of the disqualification of Judge Moses Wright of the Eome Circuit. On the interlocutory hearing it was admitted that E. T. Wright, Esq., was a brother of Judge Moses Wright of the Eome Circuit, and that he had contracted with his client to charge him $50 if the plaintiffs lost their suit, and $75 if they were successful. Judge Moses Wright is the judge of the superior courts of the Eome Circuit, which embraces the County of Walker, the venue of the action. Judge Eite is the judge of the superior courts of an adjoining circuit. Under the statute, Judge Eite’s authority to entertain jurisdiction in the ease depends on Judge Wright’s disqualification.

A judge is not disqualified to preside in a case because his brother is the attorney for one of the parties and the size of his fee is dependent on his success in the case. There is no statute or canon of law which disqualifies a judge on the ground of relationship to the attorney of one of the parties to a cause. Such disqualification must result only when he has a pecuniary interest in the subject-matter of the litigation. This is made clear by Mr. Justice Cobb in the case of Roberts v. Roberts, 115 Ga. 259 (41 S. E. 616, 90 Am. St. R. 108). That case concerned the allowance of alimony to be paid by the husband to the wife, which included counsel fees. The wife’s attorney, in the event she prevailed, would be allowed reasonable counsel fees, which fees would go directly to the attorney as a part of the sum decreed to be paid by the husband. In' the opinion it is made plain that, having direct pecuniary interest in the res, the attorney’s relation to the case was that of a quasi-party. In the instant case the attorney has no interest in the res; he can recover nothing from the adversary party by virtue of his contract with his client, which is altogether outside of the subject-matter of the litigation. Such a contract gives the attorney no more interest in the litigation than if his contract were that his fee should be one sum should the trial occur at the first term, and a different sum should the trial take place at a later term. Were the rule otherwise, it would be impossible for a judge to ever preside in a ease where one of the attorneys is a kinsman within the fourth degree of consanguinity or affinity. The statute gives the attorney a lien for his fees in cases where the same are for a fixed amount. It is the client’s recovery which furnishes the property against which the lien may be asserted. If the judge be disqualified because the attorney related to him contracts with his client ■that his fee is to be one sum if he loses and another if he wins, he would, by parity of reasoning, be also disqualified in every case where he is related to the attorney; because the attorney can only assert his statutory lien on property recovered in the suit. Judge Wright was not disqualified, and the entire proceeding before Judge Eite was unauthorized by law, and void as being coram non judice.

Judgment reversed.

All the Justices concur, except