Haygood v. Haden

• Decision Date: 12 February 1904
• Citation: 46 S.E. 625,119 Ga. 463
• Parties: HAYGOOD v. HADEN.
• Court: Georgia Supreme Court

46 S.E. 625

119 Ga. 463

HAYGOOD v. HADEN.

Supreme Court of Georgia

February 12, 1904

Syllabus by the Court.

1. The right to enforce payment of money by rule is penal in its nature, and must be strictly construed.

2. The right to rule an attorney, for money alleged to be in his hands as such, depends upon the existence of the relation of attorney and client, and is limited to the client.

3. Associate counsel cannot by rule enforce a contract for the equal division of fees; and where a proceeding was brought by the defendant in error against the plaintiff in error alleging that they were associate counsel, and seeking by rule to enforce such an agreement, a demurrer thereto should have been sustained.

4. In Smith v. Goode, 29 Ga. 185, there was no attempt to enforce the remedy now incorporated in Civ. Code 1895, § 4416; but the motion was ancillary to a bill then pending, to which the clients were parties, and amounted to the summary enforcement of the lien of attorneys against money of the client then in the hands of an officer of the court.

Error from Superior Court, Macon County; Z. A. Littlejohn, Judge.

Petition by C.J. Haden for a rule on J. W. Haygood to show cause why he should not pay over certain money. From an order granting the writ, Haygood brings error. Reversed.

Eldridge Cutts, for plaintiff in error.

C.J Haden and J. A. Edwards, for defendant in error.

LAMAR J.

Attorneys who retain in their hands the money of their clients are liable to rule. Civ. Code 1895, § 4416. The remedy is penal in its nature, and must be strictly construed. Banks v Cage, 1 How. (Miss.) 293. The right grows out of the relation of attorney and client, and the remedy is expressly limited to the client, not being available to the client's assignee. Nor can the attorney rule the client though the latter has possession of the fund created by the counsel's services, and for which he has a lien. Whittle v. Newman, 34 Ga. 378. Nor is a rule intended as a means of enforcing the attorney's lien. Id. Here the proceeding was brought by one attorney against his associate for the purpose of compelling a division of the fee collected, there being between counsel an agreement that it should be equally divided. The client is not proceeding, and it is not alleged that the defendant "retained the money of the client," so as to bring the case within the terms of the Civil Code of 1895, § 4416. Nor is the case within the provisions of the Civil Code of 1895, § 4047, par. 4, that "every court has power to control, in the furtherance of justice, the conduct of its officers and all other persons connected with a judicial proceeding before it in every matter appertaining thereto." For here not only had the litigation ended, but the rule was instituted in the superior...