Dyal v. Watson
| Decision Date | 12 February 1932 |
| Docket Number | 8286. |
| Citation | 162 S.E. 682,174 Ga. 330 |
| Parties | DYAL v. WATSON et al. |
| Court | Georgia Supreme Court |
Rehearing Denied Feb. 23, 1932.
Syllabus by the Court.
Attorneys successfully defending action to subject lands to payment of debts held entitled to lien on lands for services (Civ. Code 1910, § 3364, pars. 3, 5).
Admission of prior proceedings to support attorney's lien held authorized, notwithstanding apparent lapse of time, where evidence indicated date given as termination of suit was typographical error.
Refusal to find, on motion to dismiss levy, that proceedings were instituted out of term time, held proper under evidence.
Rule nisi, which was granted on August 13, was headed, "March term," and the rule absolute and judgment recited that rule nisi was granted at the March term, and the clerk of superior court testified there was nothing on the court's minutes to show that the March term had adjourned before August 13.
Evidence respecting contract between plaintiffs in execution and defendant, and respecting services rendered, held properly rejected as collateral attack on judgment establishing attorneys' lien.
Attorneys held barred from enforcing lien against land where prior to recording lien, another had procured registration of title certificate (Park's Ann. Civ. Code Supp. 1922, § 4215 (aa).
1. Under the Civil Code, § 3364, pars. 3, 5, the plaintiffs were entitled to a lien against the lands involved here and which were the subject of the claim interposed.
2. In view of the note of the judge to the brief of evidence, and of the facts in the record, the court did not err in holding that the date "1927," as the date upon which the suit which was the basis of the claim of lien terminated, was actually 1928.
3. The court properly overruled the motion to dismiss the levy on the ground that "the proceedings appear to have been instituted out of term time."
4. The court did not err in refusing to allow counsel for the movant to examine a witness (one of the parties plaintiff) with respect to the nature of the contract between the plaintiffs and J. E. Melton, and with regard to the services rendered by plaintiffs.
5. The court erred in excluding from evidence, upon objection of plaintiff's counsel, the certificate of title and the decree of title offered by the claimant.
Error from Superior Court, Appling County; J. H. Thomas, Judge.
Action by W. H. Watson and others against J. E. Melton. Plaintiffs recovered judgment and levied execution on certain land, and J. E. Dyal asserted claim of title thereto. Judgment was entered for plaintiffs against claimant, and claimant's motion for new trial was overruled, and claimant brings error.
Reversed.
Refusal to find, on motion to dismiss levy, that proceedings were instituted out of term time, held proper under evidence.
This is a claim case involving title to land. Defendants in error as attorneys at law represented J. E. Melton in an action against him to subject six lots of his land to the payment of a debt, and they set up an attorney's lien against the land for fees for successfully defending the action. Plaintiff in error claims title, unincumbered by the lien for fees, under a purchase from Melton pending the litigation. It appears that on March 8, 1927, the National Bank of Brunswick filed in Appling superior court its petition in equity, an equitable attachment, against J. E. Melton, in which it claimed an indebtedness due it by the defendant, amounting to about $18,000, on four notes the defendant had indorsed for C. W. Melton, deceased; also an indebtedness of $1,100 on a deed to secure debt, executed by defendant to Ashley Trust Company and transferred by said company to the plaintiff bank. The petition alleged substantially the following: That the defendant was a nonresident; that he was indebted to plaintiff in the sum of $11,052.12, besides interest (which amounted to about $7,000), on four notes he had indorsed for C. W. Melton, owned and held by the plaintiff; and owed a balance of $1,163.18, besides interest, including $300 paid for taxes, on a deed to secure debt given to Ashley Trust Company and owned and held by the plaintiff as transferee and owed about $800 in unpaid taxes against six lots of land owned by him subject to the deed to secure debt; that defendant had no other property within the state of Georgia that his equity of redemption in the six lots of land, containing 490 acres each, was worth $8,000 or other sum; that defendant's property was subject to attachment because of his nonresidence, but plaintiff could not sue out an ordinary attachment and levy on the land, because the legal title was not in the defendant; that there was no provision of law to permit plaintiff to reconvey to defendant title to the land for the purpose of authorizing the levy of an attachment thereon; that plaintiff would be taking an unnecessary and unwarranted risk in canceling the deed to secure debt, for the purpose of enabling it to sue out an attachment and levy on the land for the amount of defendant's indebtedness; that timber in considerable quantity on the land was exposed to danger and damage from trespassers and fires; that it was necessary for the court to appoint a receiver to take charge of, hold, preserve, and manage said land; that defendant had the legal right and authority to sell and convey the land to an innocent purchaser, and thereby defeat plaintiff's right to subject it to the payment of the debt due by the defendant on the C. W. Melton notes indorsed by him; that plaintiff would incur irreparable damages and injury if defendant should sell and convey his equity of redemption in said land; that it was necessary and imperative that the court grant an order enjoining and restraining defendant from selling or transferring his interest or equity in said land to any one; that plaintiff had no adequate and complete remedy at law, and defendant had no other property or assets in Georgia which could be made subject to his indebtedness to plaintiff on the notes of C. W. Melton, indorsed by the defendant.
In this petition the plaintiff prayed that it be sanctioned and filed; that the usual process issue; that service be perfected by publication; that a restraining order be immediately granted, enjoining defendant from selling or otherwise disposing of his equity of redemption in and to the land referred to; that permanent injunction be granted, perpetually restraining and enjoining defendant from disposing of said land; that the sheriff of Appling county be appointed receiver, to immediately seize and take possession of the land and hold, protect, and preserve it until the further order of the court; that such seizure operate as an equitable attachment of the land so seized, and an entry thereof be made upon the execution or attachment docket by the clerk of Appling superior court; that the court render judgment giving plaintiff a special and first lien on said land and the proceeds from any sale thereof, for the indebtedness due by defendant on the deed to secure debt; that plaintiff have judgment in rem against the land described in the petition and the proceeds from the sale thereof, for the payment of the indebtedness due it by the defendant on the notes of C.W. Melton indorsed by the defendant, which judgment should be a second lien to the judgment on the deed to secure debt; that the court direct a sale of the land, the proceeds derived therefrom to be applied in payment of costs and all taxes first, then in payment of the indebtedness due by the defendant on the deed to secure debt, and then in payment of the indebtedness of the defendant to the plaintiff on the C. W. Melton notes indorsed by defendant, any sum realized from the sale in excess of these several amounts to be paid by the court as might seem in accordance with law and equity.
On this petition the judge of Appling superior court passed an order that it be sanctioned and filed, that process issue in the usual form, and defendant be served by publication if no personal service of the petition, process, and order could be had; that defendant show cause before the court on March 12, 1927, why injunction should not be issued and a receiver be appointed to seize and take charge of and preserve and protect the land described until the further order of the court; that in the meantime the defendant be restrained, until the further order of the court, from selling, assigning, transferring, or conveying any of his right, title, interest, or equity of redemption in and to the land or any part thereof, under penalty of $2,000 fine, and being attached as for contempt of court; that H. L. Padgett, sheriff of the county, be appointed temporary receiver, to seize and take possession of the land described in the petition; that his seizure under the order should act as an equitable attachment thereof in favor of the plaintiff, on and against the land so seized and taken possession of; and he was directed to have made proper entry upon the execution or attachment docket of Appling superior court by the clerk, showing that he had seized the property under the order of the court. The petition was filed in Appling superior court on March 8, 1927, and on March 10, 1927, Padgett, the sheriff, seized and took possession of the land described therein by going thereon and posting notices of his seizure and levy thereon, and made an entry on the petition of his seizure of the land described.
As soon as J. E. Melton was notified of the pendency of the suit of the bank, he employed the defendants in error, who are attorneys at law, to represent him in the case, upon a contract in which he agreed to pay them a fee of $1,000. At the appearance (...
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