Haynes v. Perry

• Citation: 76 Ga. 33
• Parties: HAYNES v. PERRY, sheriff.
• Decision Date: 20 October 1885
• Court: Supreme Court of Georgia

76 Ga. 33

HAYNES v. PERRY, sheriff.

Supreme Court of Georgia.

October 20, 1885

October Term, 1885.

Parties to an execution cannot, by a settlement between themselves, defeat the attorney of any lien or claim under contract with his client, of which the opposite party had notice prior to the consummation of such settlement; but where an attorney, who had placed a fi. fa. in the hands of the sheriff, brought a rule against him, and the sheriff answered that the defendants had settled the fi fa. with the plaintiff, and had presented an order from the plaintiff requesting the sheriff to turn over the fi fa. to them, retaining $5.90 attorney's fees, if such answer was not traversed, it must be taken as true; and if the plaintiff, and defendant had settled the fi fa., it was functus officio, and the sheriff had no right to levy it. If the attorney had a lien on the fi. fa. for his fees due in that case, or on some other account, of which the defendants in execution had notice, he should have traversed the sheriff's answer and failing to do so, there was no error in discharging the rule.

Attorney and Client. Liens. Executions. Sheriffs. Levy and Sale. Before Judge KIBBEE. Laurens Superior Court. January Term, 1885.

Mercer Haynes ruled the sheriff of Laurens county, setting out that he had been representing one Henry Coleman, as an attorney at law, from time to time; that Coleman was indebted to him for fees to the amount of $50.00; that he recovered to a judgement in Coleman's favor against Shepard et al. for $59.17, and the fi. fa. was placed in the hands of the sheriff, who, with full notice that movant claimed a lien on the whole fi. fa. for his fees, and without instructions from the movant, turned over the fi. fa. to one of the defendants.

The answer denied notice of any lien of the movant, or that he had any lien, but stated, that before respondent had any notice of his claim of lien, the plaintiff in fi. fa. and one of the defendants made a settlement, and the former gave the latter an order to the respondent to turn over the fi. fa. to him upon the payment of $5.90, attorneys' fees, that being the amount of attorneys' fees specified in the fi. fa.; that this was done, and the amount of attorneys' fees was credited on a fi. fa. against the movant in the hands of the respondent; that he neither denies nor admits that Coleman is due the movant fees in other cases.

The answer was not...