Merch.S' Nat. Bank Of Rome v. Armstrong

• Decision Date: 29 May 1899
• Citation: 33 S.E. 473,107 Ga. 479
• Parties: MERCHANTS' NAT. BANK OF ROME. v. ARMSTRONG.
• Court: Georgia Supreme Court

33 S.E. 473

107 Ga. 479

MERCHANTS' NAT. BANK OF ROME.

v.ARMSTRONG.

Supreme Court of Georgia.

May 29, 1899.

APPEAL—REVIEW—FAILURE TO EXCEPT—ATTORNEY'S LIEN — ENFORCEMENT—ALLEGATIONS OF PAYMENT—AMOUNT OF FEES.

1. This court will not consider questions raised by a bill of exceptions assigning error on the provisions in a decree rendered by a judge of the superior court in accordance with an auditor's report, when there has been no exception to, or error assigned on, the judgment of the court overruling all objections to the report and approving the same.

2. When attorneys at law have represented a defendant in an equitable suit that has been referred by an order of the superior court to an auditor under the laws of this state, and by virtue of their professional services in the trial of the case before the auditor have obtained for their client on a counterclaim against the plaintiff an award or judgment for money or other assets of value in the custody of the court or its officers or suitors, the attorneys have upon such property a lien which it is the duty of that court to protect and enforce upon an application made by the attorneys to the court showing reason to apprehend distribution of the assets with-out payment of their fee, unless the court intervenes for their protection, (a) Rut when an intervention for this purpose has been brought by two firms of attorneys, after the filing of the report in favor of their.client by the auditor, and to this intervention there has been filed by their client a demurrer, and also an answer, which not only denies that the services rendered by the attorneys were worth the amount of fees claimed by them, but also claims that only one of the firms represented respondent in the case, and that it had been fully paid its fees, and further contends that the relation of attorney and client had never existed between the other firm and respondent, it is error for the judge to embody in his decree upon the auditor's report a provision establishing and setting up the lien claimed by the attorneys, and practically leaving open only the question as to the amount of their fees, to be ascertained on the trial of the issue formed by the intervention and the answer thereto; it appearing that none of the issues of law or fact raised by the interlocutory proceeding touching the fees had ever been submitted to. or passed upon by, the auditor, and that they had not been previously adjudicated or determined by the court, (b) When the decree was entered up in such a case, the proper course for the judge was to pass such an order as would prevent a distribution of the entire assets upon which the lien was claimed, until there had been a final trial of the issues presented by the intervention of the attorneys and the answer of the respondent thereto; and direction is given accordingly. (Syllabus by the Court.)

Error from superior court, Floyd county; A. W. Fite, Judge.

Action by R. T. Armstrong against J. King and the Merchants' National Bank of Rome and others. Plaintiff Janie W. Armstrong was substituted. Decree for plaintiff, and defendant bank brings error. Reversed.

Dean & Dean, for plaintiff in error.

Reece & Denny and Fouche & Fouche, for defendant in error.

LEWIS, J. An equitable petition was brought to the July term, 1895, of Floyd superior court, by R. T. Armstrong, in his lifetime, against J. King and the Merchants' National Bank of Rome, Ga. Pending the suit, the plaintiff died in August, 1896, and Janie W. Armstrong, his executrix, was duly made a party plaintiff. The defendants filed their answers, and the case was referred to W. T. Turnbull, as auditor, with directions that all questions of law and fact involved therein be submitted to him for investigation and report, and that he make a separate report as to law and facts, respectively, with his findings thereon. On June 8, 1897, the auditor filed his report to the court. Exceptions both of law and fact were filed on the part of the plaintiff, but the same were, after consideration, stricken and overruled by the court, and, upon motion of defendants' counsel, a final decree was rendered in the cause, signed by the judge of the court. To the granting of this decree the Merchants' National Bank, plaintiff in error, excepts, and assigns the same as error. For assignments of error it is alleged: (1) "The eighth paragraph of said decree is error, in that it failed to set up and establish a lien for the sum therein adjudged in favor of the Merchants' National Bank against Janie W. Armstrong, as executrix of the estate of R. T. Armstrong, deceased, on the R. T. Armstrong half interest in the claim and suit of Danfortb & Armstrong against the Tennessee & Coosa Railroad Company of Alabama, pending in the city court of Gadsden, in the county of Etowah, in the state of Alabama; said eighth paragraph giving only a judgment against the estate of R. T. Armstrong for the sums therein found in favor of said Merchants' National Bank, without creating any special lien whatever on said Alabama claim." (2) "The tenth paragraph of said decree was error, in that it does not restrain Janie W. Armstrong, as executrix, and her agents and attorneys, from incumbering or in any wise interfering with said claim of Danforth & Armstrong until the sums named in the eighth paragraph in said decree are paid, but only restrains her from interfering until the sums named in the ninth paragraph are paid. This defendant insists that said restraining order should have extended to the sums adjudged in its favor in the eighth paragraph, as well as those set forth in the ninth paragraph of said decree." (3) "The defendant the Merchants' National Bank further assigns error, and says that the eleventh paragraph of said decree is error in toto, for that the same is not germane to the issues involved in said litigation, and is not based upon the findings of the auditor, and involves matters not submitted to the auditor and in no way in Issue in the case. Said paragraph undertakes to set up a lien on the funds involved in this litigation without any sufficient proof of the employment of said attorneys in behalf of this defendant in said litigation. Especially Is there no proof or finding by the auditor that Messrs. Fouche & Fouche were the attorneys of this defendant, the Merchants' National Bank, by employment on the part of said bank, and no such question was submitted to said auditor, or in any way connected with the case, so that he could have found thereon; and the facts touching this matter have not been passed upon by the court or by the jury. Wherefore this defendant says it was error to pass a decree containing said eleventh paragraph as written therein."

1. That portion of the decree complained of in the first assignment of error adjudges that the Merchants' National Bank of Rome, Ga., recover of Janie W. Armstrong, as executrix of R. T. Armstrong, deceased, to be levied of the goods and chattels, lands and tenements, of said deceased, in her hands to be administered, the principal sum of $5,146.37, besides interest, and that the bank have execution for said amount of principal and interest. Another paragraph in the decree, following the one just above mentioned, also adjudges in favor of the Merchants' National Bank, as the assignee of J. King, against Janie W. Armstrong, as executrix, to be levied of the goods and chattels, lands and tene-ments, of deceased, the sum of $12,500 principal, and $3,372 interest, and the judge decrees that these sums are a charge and a special lien on the one undivided half interest of R. T. Armstrong and his estate in the suit and judgment mentioned in the assignment of error as pending in the city court of Gadsden, in Etowah county, Ala. The tenth paragraph of the decree excepted to in the second assignment of error perpetually enjoins Janie W. Armstrong, executrix, her agents and attorneys, from collecting, incumbering, or in any wise interfering with the aforesaid interest in the Danforth & Armstrong claim and suit until the sums named in the ninth paragraph of the decree have been fully paid off and discharged. It will be observed that no exception is filed to these portions of the decree, on the ground that they were not authorized by the auditor's report, or that they were not fully adjudicated and determined by the auditor. By reference to his report touching this particular branch of the litigation, we see nothing in the decree that is not in accord with the auditor's finding. He reports due to the Merchants' National Bank, on the contract of Gaboury, Armstrong & Co. (of which firm it seems the deceased was a member), the sum of $12,500 principal, besides interest, and that the bank is entitled to a lien as collateral security for these sums on the one-half undivided interest of R. T. Armstrong or his estate in the suit and judgment above mentioned as existing in the Alabama court, and that the bank has a right to collect the same and deduct the amount found by the auditor. The decree of the court was entered up accordingly as to these specified sums, about which no complaint is made. It is insisted, however, that the Merchants' National Bank is entitled to a similar decree, creating a special lien upon the suit and judgment above mentioned, and an injunction as to the other amount found in its favor by the auditor. it will be seen from the auditor's report, however, that he finds no special lien for the other sum; but his finding is simply a general one that the bank is entitled to a judgment against the plaintiff in the suit for the amount, and a decree was accordingly entered by the court, and only a general judgment was given the bank for this...