Johnson v. Mccurry

• Citation: 31 S.E. 88,102 Ga. 471
• Parties: JOHNSON. v. McCURRY.
• Decision Date: 05 August 1897
• Court: Supreme Court of Georgia

31 S.E. 88

102 Ga. 471

JOHNSON.

v.McCURRY.

Supreme Court of Georgia.

Aug. 5, 1897.

Default Judgment—Plea of Payment—Costs— Attorney's Lien.

1. Where an action had been brought and marked "in default" before the passage of ei ther the pleading act of 1893 or the practice act of 1895, there was no error at the trial thereof, occurring after the latter act took effect, in allowing the defendant, without requiring him to pay the costs, to file a plea setting up a payment alleged to have been made after the default judgment had been entered.

2. As attorneys at law have a lien for their fees upon all suits brought by them, the defendant in a civil action cannot settle with the plaintiff so as to defeat the lien of the latter's attorney, or his right to proceed with the case to recover the amount of his fee. Applying this well-settled rule to the facts of the present case, the verdict in the defendant's favor was contrary to law.

(Syllabus by the Court.)

Error from superior court, Floyd county; W. M. Henry, Judge.

Action by R. H. Johnson against L. D. McCurry. Judgment for defendant, and plaintiff brings error. Reversed.

Henry Walker, for plaintiff in error.

E. P. Treadaway and J. B. F. Lumpkin, for defendant in error.

FISH, J. 1. When this case was called for trial in the court below on July 20, 189G, it was in default. Complaint is made by the plaintiff in error that, notwithstanding this fact, the court, over his objection, permitted the defendant to file a plea of payment, without at the same time requiring him, as a condition precedent to opening the default, to pay all costs which had accrued in the case up to that time. In this connection the practice act of 1895 (now embodied in sections 5069 et seq. of the Civil Code) is cited and relied upon. It does require, not only "payment of all costs which have accrued, " but that the defendant shall move "within thirty days after the entry of default." The record before us discloses, however, that the present action was instituted on March 7, 1893, and that the judgment of default therein was entered long prior to the passage of that act. Indeed, the case stood in default upon the docket prior to the passage of the pleading act of 1893, which left somewhat in doubt the power of the judge to open a judgment of default even upon payment of costs. It follows, therefore, that neither of these two acts can have any bearing upon the question here presented. Tested by the law as it stood when the judgment of default...