May & Co. v. Sibley

Jackson, Chief Justice.

1. This record presents two questions: First, was the pláintiff in error entitled to feés for bringing the money into court? We think he was, because he fought the claim off until it was withdrawn, and then the property was sold, and the money brought into court and made the subject matter of this rule. By the statute, Code, §1998, when, by litigation with a claimant, money is thus brought in, no matter what lien takes.it, the party bringing it into court by such litigátion is éntitled to fees.

It does not matter that the plaintiff, who is entitled to the fund by superior lien, has an interest allied to claimant’s, and was really helping the claimant in the fight, and did not desire the property sold ; if he pursues the fund thus brought into court for distribution, he can get thát only after paying his adversary for bringing it. in by successful litigation. . In this case the plaintiff in execution, who was held entitled to the fund, is a party in her own right, entitled to the money in her own individual right and as her own property; while, though the same individual is the defeated claimant, she is such claimant as trustee for her children. A claim is as successfully defeated when the claimant withdraws it, and abandons the field, as when a verdict is rendered. The fruit is the same. The property is sold and the fund in court.

Nor does it matter that the other plaintiff, who claims fees, contracted with his client for conditional fees only. The fees allowed for bringing money into court are not dependent on contract, but spring out of the law, and are such reasonable fees as the court will allow.

2. Inasmuch as the ruling antagonistic to these views necessitates the grant of a new trial, it is unnecessary to determine the other point.

A majority of this court held that a large claim might be cut into little notes and thus expedite judgments and give them priority over a creditor who had actually seized the debtor’s property by attachment, and thus the favored creditor and debtor might collusively defeat the vigilant attaching creditor. I held the contrary opinion, and still adhere to it, for the reasons given in my dissenting opinion in that case. 60 Ga., 669.

My associate, then on the circuit bench, Judge Crawford, held and holds the same view, having rendered the judgment which was there reversed.

But as that was the decision of a then majority of the bench, we are unwilling to overrule it except by a unanimous bench.

Judge Speer, while expressing no opinion on the merits of the question, prefers, as he has not examined it as fully as would be desirable, and cannot well do so during his short term of service, that the point lie over for future decision by a full bench. It will therefore take that direction.

It may be remarked, however, that where fraud may be discovered lurking about the transaction, and circumstances show fraudulent collusion between husband and wife to defeat the active creditor by an illegal or unfounded claim, no court, it is presumed, would uphold such a transaction. This court has certainly never done so.

Judgment reversed.