Brotherton v. Stone , 197 Ga. 74 ( 1943 )

1. On this ancillary petition by the defendant's attorneys in an equity case to fix a reasonable fee for services rendered in the suit by recovering a sum of money, which was being held as custodian by a title insurance company for the defendant and the attorneys "as their rights and interests might appear," there is no merit in the exception to the judge's passing on the matter without a jury, irrespective of the question sought to be raised, especially since the judge certified that "no ruling was invoked," and none was "made by the court as to whether this matter should be tried by a jury."

2. In addition to what is known as a "holding lien" in favor of attorneys on "all papers and money of their clients in their possession, for services rendered to them" (Code, § 9-613 (1)), the statutes give to attorneys what has been called a "charging lien," not only upon judgments and decrees for money or for the recovery of real or personal property, but upon the "suits" in which such relief is obtained or sought. Byrd v. Clark, 170 Ga. 669 (3) (153 S.E. 737); Twiggs v. Chambers, 56 Ga. 279; Winslow Bros. Co. v. Murphy, 139 Ga. 231, 233 (77 S.E. 25, 45 L.R.A. (N.S.) 750); Code § 9-613 (2, 3). Nor are such lines as to property or suits limited to attorneys for a plaintiff; but they "shall be equally allowed to attorneys at law employed and serving in defense against such suits in case the defense is successful." Code § 9-613 (5); Prudential Insurance Co. v. Byrd, 188 Ga. 527, 529 (4 S.E.2d 175), and cit.; Fry v. Calder, 74 Ga. 7.

3. "The rule to be deduced from the decisions construing laws similar to our own, which give attorneys liens, is that the lien attaches to the fruits of the labor and skill of the attorney, whether realized by judgment or decree, or by virtue of an award, or in any other way, so long as they are the result of his exertions." Middleton v. Westmoreland, 164 Ga. 324 (1-b), 329 (138 S.E. 852); Wooten v. Denmark, 85 Ga. 578 (11 S.E. 861); Barge v. Ownby, 170 Ga. App. 440 (153 S.E. 49); Camp v. U.S. Fidelity Guaranty Co., 42 Ga. App. 653 (2) (157 S.E. 209): Thomas v. Travelers Ins. Co., 53 Ga. App. 404 (185 S.E. 922). Accordingly, such a lien inures in favor of attorneys for the defendant in an equity suit, where, as in this case, they obtain a favorable settlement agreement for their client, and money under such settlement is paid to and held by a third person for the benefit of the defendant client and the attorneys "as their interests and rights might appear." 5 Am. Jur. 406, § 239: 7 C. J. S. 1169, 1170 § 228; and citations in those texts. See also, in this connection, Merchants National Bank v. Armstrong, 107 Ga. 479 (2) (33 S.E. 473).

(a) Where money is obtained for a client and is held in escrow for him and the attorneys, as stated, and these parties agree that while the original equity suit remains pending the court shall fix a reasonable fee, and the attorneys file their petition for such an allowance, a rule nisi is granted, and the matter is set down for a hearing, the fact that between the time of the granting of the rule nisi and the hearing a notice is filed with the clerk of the court, signed by all attorneys in the main original suit, directing the clerk to dismiss such suit as settled, will not deprive the court of its jurisdiction, already taken, of the ancillary petition, and right to determine as to such fee.

4. No question is raised by the bill of exceptions as to the actual existence of the agreement between the contending parties for the court to fix the fee, or as to the reasonableness of the amount fixed.

5. Under the preceding rulings, the court properly denied the motion to dismiss the petition to fix the fee, and did not err in allowing the amount found.

Judgment affirmed. All the Justice concur.

No. 14722. NOVEMBER 30, 1943. REHEARING DENIED DECEMBER 13, 1943. The owners of a note secured by a deed sued the executor of the will of the deceased promissor for an alleged balance due of $5899.86. Two attorneys, employed by the defendant, filed for him an answer in the nature of a cross-bill, in which they not only asked for a recovery of $2000 upon the defendant's conveyance to the plaintiffs of certain real estate, but prayed for affirmative equitable relief by cancellation of a deed and note and by specific performance of a contract.

After several weeks of negotiation and approval of title by a title-insurance company, an agreement of settlement was made, under which the plaintiffs' claim against the defendant was settled, and a net amount of $1935 was paid into the hands of the title company for the benefit of the defendant. Upon failure to pay their fee, the attorneys for the defendant filed in the same superior court equity suit a petition, which set forth the above facts; their legal services in the case; that $100 as a retainer had been paid on their fee; and that "the [defendant] executor claims the court should name a reasonable sum to be paid said attorneys, to which the petitioners agreed, and therefore present this petition."

At the hearing on the rule nisi, granted on the filing of the attorneys' petition, the court denied a motion to dismiss on the ground that "it appears upon the face of the petition and the record" that the petitioners are not entitled to relief, and allowed a fee of $750 additional to the $100 retainer, with a lien on the fund of $1935 for the fee allowed. A written notice to the clerk, signed by all counsel in the main original equity case, directing the clerk to mark such case as "settled and dismissed," was filed before the hearing on the rule nisi, but after the order granting the rule nisi and setting the matter down for hearing.

As the bill of exceptions recites, it appeared without dispute at the hearing that the $1935 "was being held in escrow by [the title company] for said defendant and said attorneys as their rights and interests might appear;" that court costs had been paid out of said fund; that said "attorneys admitted in said hearing that there had been an express contract . . fixing their fees at $750 in the premises, but the defendant denied the contract following the settlement, and that it was thereupon agreed between the parties that reasonable attorneys' fees should be fixed by the court;" that "plaintiff in error does not hereby except upon any ground of insufficiency of evidence to sustain the value of the attorneys' fees adjudged by the court, and the admissions herein set out (in the foregoing paragraph) having bearing merely upon the question of the right of said attorneys to recover upon its being conceded that all allegations of their petition which are not in conflict with said admissions are entirely true and the value of their services was properly proved as alleged, and said paragraph includes all evidence having bearing upon said admissions." Although there is an exception to the judge "trying . . said matter without a jury," his certificate recites that "no ruling was invoked by counsel or made by the court as to whether this matter should be tried by a jury."