Griner v. Foskey, 61901

• Decision Date: 19 May 1981
• Docket Number: No. 61901,61901
• Citation: 158 Ga.App. 769,282 S.E.2d 150
• Parties: GRINER et al. v. FOSKEY et al.
• Court: Georgia Court of Appeals

Page 150

282 S.E.2d 150

158 Ga.App. 769

GRINER et al. v. FOSKEY et al.

No. 61901.

Court of Appeals of Georgia.

May 19, 1981.

Rehearing Denied June 10, 1981.

Fred L. Belcher, Elsie H. Griner, Nashville, for appellants.

M. Theodore Solomon, Alma, for appellees.

DEEN, Presiding Judge.

The appellant attorneys filed a petition in two counts alleging they represented five children of W. H. Foskey, Sr., deceased, in certain litigation for which they had not been paid. Count 1 sought foreclosure of an attorney's lien, and Count 2 was based on quantum meruit and on the testimony of the name appellant that the defendants had agreed to pay her "one third of the property that was saved for them." Summary judgment was granted the defendants on Count 1 and a jury verdict for plaintiffs in the sum of $500 on Count 2 is attacked as being grossly inadequate.

1. (a) As to Count 1, we agree with the trial court that the defendants were entitled to a summary judgment finding no valid attorney's lien existed, but not on the ground stated in the order, which read as follows: "The Court determined that plaintiffs' notice of lien as filed specifies no due date of the indebtedness, and the Court found that plaintiffs failed to commence an action for the recovery of the amount of their alleged claim within 12 months from the due date, which date the Court determines to be no later than the date of filing of the lien." This part of the order refers of course to Code § 67-2002 relating to the foreclosure of liens for materials and certain other services, and which requires that the action be brought within 12 months from the time the debt becomes due. This question was raised by a ground of the motion for summary judgment contending that the lien was barred by the statute of limitations. However, Code § 67-2002 is applicable to attorney's liens only when the struggle is between the attorney and an innocent third party; as to an issue between the attorney and client only, it is not necessary to show compliance with the lien statutes of Code Ch. 67-20 in order to recover. Coleman v. Austin, 99 Ga. 629, 27 S.E. 763 (1896). Where a contract between attorney and client is not in writing the statute of limitations on the debt is four years. Peavy v. Turner, 107 Ga. 401, 33 S.E. 409 (1899). Thus, the fact that the action for payment of attorney fees was not brought within one year, or that other requirements of § 67-2002 were not met, is no ground for denying the claim.

(b) However, the charging lien sought to be foreclosed by this action must be shown to exist under either Code § 9-613(2) or (3). The first subsection refers to a lien on suits, judgments and decrees for money. The second is upon suits for the recovery of real or personal property and judgments or decrees for the recovery of the same. Prudential Ins. Co. v. Byrd, 188 Ga. 527(1), 4 S.E.2d 175 (1939). It does not apply to actions in which neither money nor property may be gained for the plaintiffs or saved for the defendants. Thus, in a divorce action where the parties reconcile before a judgment for alimony and attorney fees is entered, there is no lien against the husband. Keefer v. Keefer, 140 Ga. 18(1), 78 S.E. 462 (1913). An application to set apart a homestead is neither a suit for money nor for the recovery of property, and therefore cannot form the basis for a lien. Haygood v. Dannenberg Co., 102 Ga. 24, 29 S.E. 293 (1897).

The present action is one brought on behalf of the children of a decedent to remove one Dockery as the administrator of their father's estate, and replace him with J. M. Foskey, an uncle. After a series of maneuvers on both sides it appears that Dockery was removed and Foskey was granted letters of administration. It does not appear that this conclusion of the litigation resulted in any monetary or property accrual to any of the defendants which they would not have had in their status of heirs of the deceased. Cf. Woodward v. Lawson, 225 Ga. 261(3), 167 S.E.2d 660 (1969). Therefore, while Georgia seems not to have considered the exact question, we are persuaded that the facts closely follow In re Nocton's Estate, Sur., 162 N.Y.S. 215 (1916), which was likewise an application by an attorney for an order determining and enforcing an alleged lien against the estate of a decedent. It was there held that while one who employs an attorney in order to procure letters of administration may owe the latter money, this is an individual matter and not a lien against the general assets of the estate. "But in this matter there are no proceeds, as the decree did not determine the right of the petitioner's client to any part of the decedent's estate, but merely his right to act as administrator of it. Therefore, there are no proceeds of the decree to which the lien could attach." We therefore conclude that the grant of summary judgment to the defendants on the attorney lien issue was correct. Although the original administrator was removed and the nominated uncle was appointed, even assuming that this financially protected the estate, it brought no fund to the heirs...