John J. Woodside Co. v. Irwin

• Decision Date: 13 April 1949
• Docket Number: 32393.
• Citation: 53 S.E.2d 246,79 Ga.App. 252
• Parties: JOHN J. WOODSIDE CO., Inc., et al. v. IRWIN.
• Court: Georgia Court of Appeals

53 S.E.2d 246

79 Ga.App. 252

JOHN J. WOODSIDE CO., Inc., et al. v. IRWIN.

No. 32393.

Court of Appeals of Georgia, Division No. 1.

April 13, 1949

Rehearing Denied May 13, 1949.

SYLLABUS BY THE COURT.

1. An attorney's lien, superior to all other liens except liens for taxes, attaches to the fruits of the labor and skill of the attorney, whether realized by judgment or decree, or by virtue of an award, or in any other way, so long as they are the result of his exertions.

2. The evidence, although conflicting in some respects, is sufficient to authorize the finding and judgment of the trial judge.

3. Under the facts of this case and the law applicable thereto the trial judge was authorized to find that the fund held in escrow was the result or fruits of the labor and skill of the plaintiff as an attorney at law and that his lien as an attorney attached thereto and was superior to the liens of the two defendants, who held bills of sale to the insured property destroyed by fire, from which the insurance fund in escrow was derived.

Grant Wiggins, Grizzard & Smith, Atlanta, Spalding, Sibley, Troutman & Kelley, Atlanta, James M. Sibley, Atlanta, for plaintiff in error.

Wm. S. Shelfer, Atlanta, for defendant in error.

SUTTON Chief Judge.

R. Beverly Irwin filed his petition in the Superior Court of Fulton County and asked for a declaratory judgment to establish for him an attorney's lien on a certain fund held in escrow by a depository bank in the City of Atlanta. The Trust Company of Georgia, John J. Woodside Storage Company, and Charles R. Johnson were made defendants in this action. Answers were filed by the Trust Company of Georgia and the John J. Woodside Storage Company. It appears from the record that Charles R. Johnson owned a described tractor and trailer, which were covered by a policy of insurance issued by the Phoenix Insurance Company, on September 24, 1946, for a period of one year. The Trust Company of Georgia held a bill of sale to secure a debt for the approximate sum of $3871.91 as a first lien against the tractor and trailer, and John J. Woodside Storage Company held two bills of sale to secure an indebtedness in the approximate sum of $4618.89, as a second lien against the tractor and trailer. Just prior to September 24, 1947, the date for the expiration of the insurance policy above referred to, Johnson had made a trip to California with the tractor and trailer truck and from there he communicated by telephone with an official of the Woodside Storage Company, with reference to keeping the insurance policy in effect until his return to Atlanta, and at the instance of the Woodside Storage Company the local agent of the Phoenix Insurance Company in Atlanta extended the coverage of said insurance policy on the tractor and trailer for a period of ten days from September 24, 1947. On October 6, 1947, while Johnson was on his way back from California to Atlanta, the tractor and trailer were burned in Alabama, this being two days after the extended insurance coverage on said property had expired. After the loss of said property by fire, Johnson, the Woodside Storage Company, and the Trust Company of Georgia communicated with the local agent of the Phoenix Insurance Company in an effort to have the insurance company pay for the loss, but it was contended by the insurance company that there was no legal liability on its part as its coverage had expired before the loss occurred. Several months later, on April 21, 1948, Charles R. Johnson employed R. Beverly Irwin, an attorney at law, to represent him in his claim against the Phoenix Insurance Company, the John J. Woodside Storage Company, and the Trust Company of Georgia, and agreed to pay him a fee of one-third of any sum recovered; and Irwin then entered into negotiations with said parties with reference to getting an adjustment or payment for Johnson for the loss of the tractor and trailer by fire. The insurance company still insisted that there was no legal liability on its part, but later agreed to issue a renewal of the policy from September 25, 1947, upon the payment of a year's premium of $1154.76, and it then honored the claim and agreed to pay $6500 for the loss of the tractor and trailer. The Trust Company of Georgia, John J. Woodside Storage Company, R. Beverly Irwin, and Charles R. Johnson then entered into a written agreement wherein it was stipulated, among other things, that: 'Irwin, as attorney to Johnson, claims that he has procured the issuance of the said policy, as set forth in paragraph 3, and accordingly claims to be entitled to a first lien superior to all others upon the fund in an amount of one-third of the proceeds (less cost of premium) to be paid by the insurance company upon the loss; 5. Johnson has a claim against the proceeds of said policy by reason of being the insured thereunder; 6. Woodside has a claim against the proceeds of said policy by reason of a note and security instruments of record covering the said property; 7. Trust Company has a claim against the proceeds of said insurance policy by reason of a note and security instruments of record covering said property.' It also was agreed that the trust company would pay the premium of $1154.76 to the insurance company for the renewal of the policy and that this amount would be paid back to the trust company immediately upon receipt of the funds from the insurer, and the balance of $5345.24 was placed in the Bank of Georgia, 'to be held by it in escrow pending an agreement by all of the parties as to the amount to be distributed to each of them or an order of any court having jurisdiction of the fund determining the amount to be distributed to each of them.'

Thereafter R. Beverly Irwin filed this suit, asking that he be granted a declaratory judgment setting up his special lien as an attorney at law on said fund in escrow for the amount of his attorney fees, superior to all other alleged liens. The case was tried before a judgment of the Superior Court of Fulton...