Walker v. Floyd , 30 Ga. 237 ( 1860 )

By the Court.

Lyon, J.,

delivering the opinion.

1. The Act of 22d of January, 1852, “ to regulate the practice of the Supreme Courts and of the Superior Courts of this State,” etc., provides, “ That when any cause shall be sent back to the Superior Court by the Supreme Court, the same shall be in order for trial at the first Term of the Superior Court next after the decision of the said Supreme Court. And where either party may have exhausted their continuances on the appeal, the said Superior Court shall have full power and authority to grant one continuance to said party as the ends of justice may require.” Under that statute, the plaintiffs in error were not entitled to a continuance of the cause on the first ground. The record does not show that they had exhausted their continuances. That statute evidently intended that the Court should continue only for a good and sufficient cause shown. That the mere fact that a full report of the decision of the Court in the former trial had not been received, should not, of itself, be a sufficient ground of continuance. But that when the continuances allowed by law, on proper showing made, had been exhausted, that then the Court might continue on a like showing one time more, if the ends of justice require it. These parties gave no reason why the decision of this Court was necessary to a full understanding and settlement of their rights before the Court, or in what way it could benefit them in that trial. Nor can we see how the want of that judgment has injured or even affected their rights.

2. To entitle one to a continuance on account of the absence of an attorney, who is a witness for him, it is necessary that he should show that he has used the same diligence to procure his attendance or his testimony, if he resides out of the county, as any other witness, notwithstanding the attorney, at the time, may be a regular attendant upon, and practitioner in, the Court where the testimony is desired to be used ; for the reason that, although the attorney is for certain purposes an officer of the Court, he is not so for all purposes. He is not obliged to attend the Court. He attends the Court voluntarily in the pursuit of his profession as the prosecutor of his client’s rights before the Court. And as the plaintiff did not come up to this rule, the motion for continuance was properly overruled.

3. Counsel for plaintiffs in error demurred to the form of proceeding on three grounds:

1st. That a rule was not the proper remedy.

2d. That the rule did not plainly and distinctly set forth the cause of action, and did not contain a bill of particulars of the services rendered.

3d. That there was a branch of the litigation still pending. Whether a rule was the proper form of proceeding for settling the issue between these parties, was made and determined against plaintiffs in error in this same case, in the name of Smith vs. Goode, 29 Ga., 185, with the reasoning of which the plaintiffs must be satisfied.

4. The employment of counsel goes to the whole of the litigation, from the time of his employment to the end of the same, and he is expected, and it is Tiis duty, to do every service in the progress of the cause that is necessary for the prosecution, protection, or defense of his clients’ right — in all things to represent and insist upon his rights, and his compensation is to be measured by the amount involved, the benefits conferred, the services actually rendered that was necessary to be rendered, and the time the litigation was continued. But it is not the practice, and it would be bad policy, to fix a specific charge for each specific thing done by counsel in the progress of the cause. There would be no end to the charges, and no inducement to counsel to bring the litigation to an end. Without enlarging further upon this point, we hold, for these reasons, that it was not necessary to attach a bill of particulars to the rule to show cause why the money should not be paid. It is sufficient if the rule show on what account it is moved and in what litigation the service was rendered. In other words, all that is necessary is, that the rule should contain sufficient to put the client on notice and to bar a future demand of the attorney for the same service, and this we think this rule does. And this, we think, disposes of all objection to the testimony of the witnesses sworn on the trial on the same ground.

5. The attorney could not move This rule against a fund in Court for services not yet rendered. But we do not understand that to have been the object or effect of this proceeding. It was a claim for fees- for such services only as had already been rendered, and in a litigation which was ended.

Some other points appear in the' bill of exceptions, but as they were not argued or relied on,-and as we do not see any merit in any of them, we take if for granted that counsel for plaintiffs in error abandoned them and did not desire this Court to pass upon them.. The main ground relied on was, that the attorney’s claim for services could not be enforced as a lien against the fund in Court by rule, but must be ascertained and fixed by an action at law as all other claims; and this question was decided as before stated, and against the plaintiffs at Atlanta, August Term, 1859, of this Court.

Judgment affirmed.