Byrd v. Clark
| Decision Date | 17 June 1930 |
| Docket Number | 7564. |
| Parties | BYRD v. CLARK. |
| Court | Georgia Supreme Court |
Syllabus by Editorial Staff.
Contract to pay attorney percentage of moneys received provided for conditional compensation.
Happening of contingency is condition precedent to attorney's right to recover contingent fee.
Attorney agreeing to collect money for percentage cannot recover fees for obtaining judgment, but must collect money.
Attorneys have liens for services on property recovered which is not perfect on property until after recovery, but is perfect at once on suit.
Attorney employed to cancel deeds and subject lands to judgment obtaining only general judgment on service by publication without making grantees parties, could not recover contingent fee.
Attorney was employed by divorced wife to procure judgment on judgment of foreign state, awarding her alimony and counsel fees, and to cancel deeds by husband to defeat recovery of alimony and subject lands to judgment. Grantees in deed were not made parties, and no judgment was obtained setting aside such conveyances and fixing lien on lands, but only general judgment was obtained against husband, who was served by publication only, and who did not appear and plead. Attorney obtained order for sale of lands and order directing distribution of money subject to order of court, and wife bid off lands at such sale, without paying money into court, and in ignorance of fact that deeds of adverse claimant had not been canceled, and court did not by any order approve distribution of proceeds of sale.
Judgment in personam against nonresident in action on alimony judgment from foreign state, where defendant was served by publication, but on which no personal service of process within state was made, and who did not appear, is void.
Error from Superior Court, Chatham County; Peter W. Meldrim, Judge.
Equitable petition by Ophelia M. Byrd, in which Don H. Clark filed an intervention. Judgment for intervener, plaintiff's motion for new trial was overruled, and plaintiff brings error.
Reversed.
Attorneys have liens for services on property recovered which is not perfect on property until after recovery, but is perfect at once on suit.
Ophelia M. Byrd, obtained, on March 12, 1925, in the superior court of Cook county, Ill., a divorce from her husband, and a judgment for alimony payable $12 a week, and an allowance for attorney's fee. In February, 1926, she employed Don H Clark, an attorney at law, to obtain judgment in this state upon the Illinois judgment, and to enforce the judgment so obtained against property of her husband situated in this state. In pursuance of his employment Clark, on March 1 1928, instituted in Chatham superior court an equitable petition in behalf of the wife against her husband, the Savannah Savings & Real Estate Corporation, William M Tolbert, and Edward Ricks, for the purpose of obtaining a Georgia judgment on the Illinois judgment, and of enforcing such judgment for alimony against her husband, by subjecting to the payment of her claim for alimony certain property situated in this state. At the date of the institution of this proceeding the defendant resided out of this state, and concealed himself at some place unknown to his wife, for the purpose of avoiding the processes of the courts of this state, and thereby preventing the enforcement of the claim of the wife for alimony against him. In this petition the wife alleged that the husband was indebted to her on the Illinois judgment $1,754, that sum due for 146 weeks, less $48, which had been paid upon this claim; that the husband was the owner of a house and lot in Savannah known as 815 and 817 West Forty-Second street, of the value of $6,000, a lot of land containing one acre, more or less, at or near the town of Montgomery in Chatham county, an automobile of the value of $200, household and kitchen furniture of the value of $100, and ten shares of the capital stock of the Savannah Savings & Real Estate Corporation, standing in his name, of the nominal value of $10 per share, but of the actual value of $250. The husband has continuously rented his house and lot in Savannah, since the rendition of the Chicago judgment, to Tolbert and Ricks for $50 per month. Said tenants are paying their rent to Louis B. Toomer as agent of the husband, who turns the same over to John L. Byrd, a brother of the husband, who in turn delivers the same to the husband. Toomer pretends that said realty is owned by the mother of her husband, and that he is the agent of the mother and brother of her husband, and does not represent her husband. She charges that all of said pretensions are utterly false and fraudulent and made for the sole purpose of defrauding her of her alimony; that the husband, intending and contriving to cast a cloud upon his own title, by deed executed since the rendition of said judgment in Illinois conveyed said realty to his mother in consideration of $1 and natural love and affection, but, notwithstanding said conveyance, the husband during all this time, through his agent Toomer, returned this realty for taxation in Chatham county in his own name, and is still doing so; that the acts and doings recited were in fraud of her rights, and ought in equity be annulled and set aside, and the title to said real estate, whether in the brother or mother, should be canceled, so that the same will become subject and liable to her claim for alimony; that the Savannah Savings & Real Estate Corporation can, and she believes will, deliver said shares of stock to her husband upon his demand, and that they and their value will thus be lost to her and rendered impossible of subjection to her claim, unless the court shall enjoin said corporation from parting with the possession of said stock, money, or other property of the husband. For the purpose of subjecting all of said properties and the rents therefrom to the payment of the claim for alimony, she prayed for the appointment of a receiver.
The husband was served by publication, and the other defendants were served personally. The court, on March 5, 1928, granted the injunction as prayed. On May 31, 1928, Louis B. Toomer was appointed receiver to collect all rents from Tolbert and Hicks. On November 20, 1928, a verdict was rendered in favor of the wife against the husband for $1,968 principal. On April 2, 1929, the wife filed her petition, in which she prayed that the receiver account for all moneys collected by him, and that the court direct him to sell all of the real estate of the husband, in satisfaction of her judgment. On April 8, 1929, the court passed an order directing the receiver to sell the real estate after due advertisement. On May 28, 1929, the wife, by her attorney, W. G. Carroll, filed her petition, in which she alleged, among other things, that on May 7, 1929, the above-described property was offered for sale at public outcry, and that she, through her attorney, bid the same in for $2,035; that the receiver now has in his possession certain moneys derived from the rent of said property; that there are no other valid claims against the same; that her judgment against her husband has never been paid, and said property is subject to its payment; that she is ready and willing to pay all costs in said action, and has offered to pay all costs of sale of the property, but the receiver refuses to make a return to the court and to ask for a confirmation of the sale. She prayed that the court direct the receiver to account to the court for all moneys coming into his hands from the rent of the property and its sale to her, and that the amount of the sale, less court costs, and expenses be applied in payment of her judgment.
On June 14, 1929, Clark filed his intervention in which he claimed a lien upon the...
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