Marger v. Miller

• Decision Date: 04 May 1973
• Docket Number: No. 1,No. 47755,47755,1
• Citation: 198 S.E.2d 709,129 Ga.App. 44
• Parties: Edwin MARGER v. Joel MILLER
• Court: Georgia Court of Appeals

Page 709

198 S.E.2d 709

129 Ga.App. 44

Edwin MARGER v. Joel MILLER.

No. 47755.

Court of Appeals of Georgia, Division No. 1.

May 4, 1973.

Waldman & Marger, Herbert S. Waldman, Atlanta, for appellant.

Savell, Williams, Cox & Angel, Henry Angel, J. Caleb Clarke, III, Atlanta, for appellee.

Syllabus Opinion by the Court

QUILLIAN, Judge.

Joel Miller brought an action in the Civil Court of Fulton County against Edwin Marger. The complaint sought recovery for a judgment entered against the defendant in the amount of $1150 predicated on a Florida Circuit Court judgment. The Florida judgment recited that on the motion of Joel Miller for a judgment for attorney's fees that the court ordered and adjudged that Edwin Marger was indebted to Joel Miller for attorney fees in the sum of $1150 and that execution should issue for such judgment.

The defendant in his answer denied the material allegations of the plaintiff's complaint. On the trial of the case before a judge sitting without a jury the defendant moved to dismiss the complaint on two bases: (1) that to enforce the Florida judgment would violate the public policy of the State of Georgia; (2) that the judgment was not enforceable under the Florida law.

The trial judge after hearing testimony and argument of counsel, including a brief filed to such point, entered an order finding for the plaintiff. From this judgment appeal was taken.

1. The appellant urges under Georgia law that an attorney cannot recover attorney fees awarded to him in a divorce action in his own name. Among the authorities cited in support of this proposition is White v. Bowen, 223 Ga. 94, 153 S.E.2d 706, where it was held that the allowance of attorney fees in an action for divorce and alimony as part of the expenses of litigation is for the benefit of the wife and an award of attorney fees could not be enforced by the wife's attorney in his own name by attachment for contempt or by writ of fieri facias.

There are numerous cases in Georgia holding that a judgment providing that an attorney recover a stated sum as attorney fees is not void but will be construed as a judgment that the plaintiff recover as attorney fees the amount stated. Sellers v. Sellers, 175 Ga. 47(3), 164 S.E. 769; Blackburn v. Blackburn, 201 Ga. 793, 794, 41 S.E.2d 519; Coleman v. Coleman, 205 Ga. 92, 93, 52 S.E.2d 438; Walden v. Walden, 171 Ga. 444(2), 155 S.E. 919. There are 3 older Supreme Court decisions, Sprayberry v. Merk, 30 Ga. 81, 82; Weaver v. Weaver, 33 Ga. 172; Roberts v. Roberts, 115 Ga. 259, 264, 41 S.E. 616, recognizing that counsel in his own right is entitled to attorney fees. There seems to be nothing in any of the decisions holding that Georgia public policy forbids a judgment awarding attorney fees to counsel but merely that the proper procedure is for counsel to seek recovery of such fees in the name of his client, the divorced spouse. There is certainly no such overriding consideration of public policy as to overcome the requirements of full faith and credit which must be given to the Florida judgment. Peeples v. Peeples, 103 Ga.App. 462, 468, 119 S.E.2d 710; Kelly v. Kelly, 115 Ga.App. 700, 701, 155 S.E.2d 732; Milwaukee County v. M. E. White Co., 296 U.S. 268, 56 S.Ct. 229, 80 L.Ed. 220; Morris v. Jones, 329 U.S. 545, 67 S.Ct. 451, 91 L.Ed. 488, 168 A.L.R. 656; Magnolia Petroleum Co. v. Hunt, 320 U.S. 430, 64 S.Ct. 208, 88 L.Ed. 149, 150 A.L.R. 413.

2. (a) The parties in this case never formally introduced into evidence any Florida law. Under the former case decisions this would raise a serious question. Compare Trustees of Jesse Parker Williams Hospital v. Nisbet, 189 Ga. 807, 811, 7 S.E.2d 737 and Alropa Corp. v. Pomerance, 190 Ga. 1(1c), 8 S.E.2d 62 with Seaboard Air-Line Railway v. Phillips, 117 Ga. 98, 100, 43 S.E. 494. See also Veach v. Veach, 205 Ga. 185, 191, 53 S.E.2d 98. As to the methods of proof, see Hamilton v. Metropolitan Life Ins. Co., 71 Ga.App. 784, 790, 32 S.E.2d 540; Sherman Stubbs v. American Institute, 117 Ga.App. 829, 833, 162 S.E.2d 240. However, the Civil Practice Act now provides: 'A party who intends to raise an issue concerning the law of another State or of a foreign Country shall give notice in his pleadings or other reasonable written notice. The Court, in determining such law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under the rules of evidence. The court's determination shall be treated as ruling on a question of law.' Code Ann. § 81A-143(c) (Ga.L.1966, pp. 609, 654; 1968, pp. 1104, 1108). Reading this section in conjunction with Code § 38-112, we consider the applicable Florida law insofar as it is cited to us in the briefs and in the record by counsel. Smith v. Davis, 121 Ga.App. 704, 706, 175 S.E.2d 28; Atlanta Newspapers v. Shaw, 123 Ga.App. 848(1), 182 S.E.2d 683. See also Morgan v. Reeves, 226 Ga. 697(1), 177 S.E.2d 68.

(b) The Florida Statute, F.S.A. § 61.16 (Fla.St.1965, § 65.17) provided: 'When any court makes an allowance for attorneys' fees, suit money or costs in any divorce, alimony or support action, the court may direct that such...