Walker v. Equitable Mortg. Co.

• Decision Date: 11 March 1902
• Citation: 40 S.E. 1010,114 Ga. 862
• Parties: WALKER et al. v. EQUITABLE MORTG. CO. SAME v. EQUITABLE MORTG. CO. et al.
• Court: Georgia Supreme Court

40 S.E. 1010

114 Ga. 862

WALKER et al. v. EQUITABLE MORTG. CO.

SAME v. EQUITABLE MORTG. CO. et al.

Supreme Court of Georgia

March 11, 1902

Syllabus by the Court.

1. A plaintiff in error in this court cannot withdraw a writ of error over the objection of his counsel, when it appears that the litigation is such that it would, if successful, result in a recovery of property on which counsel would have a lien for fees earned in the case.

2. Where there are several plaintiffs in error in a bill of exceptions, an affidavit of inability to pay costs, made by any number of them less than all, is insufficient to bring the case to this court in forma pauperis. Nor, where such affidavit is signed by all of the plaintiffs in error save one, can it be made sufficient by striking from the bill of exceptions the name of the party who did not join in the affidavit, when the record shows that he was a party to the case in the court below.

3. Where a motion is made to set aside a decree, it is not error to allow any one who has a substantial interest therein to intervene and be made a party.

4. Under the provisions of the Code it is too late, after more than three years from the rendition of a decree, to make a motion to set it aside, when the movants had full knowledge of the decree and its recitals, and when such decree appears on the face of the record to be valid and binding.

5. A case fully and finally disposed of by such decree should not be reinstated on motion, when such decree, valid so far as appears from the record, has never been reversed or set aside.

6. It is not error to sustain a demurrer to a statutory claim based on purely legal grounds, when the execution under which the property is about to be sold is based on a decree to which the claimants were parties, and under which the title relied on in the claim was adjudicated adversely to the claimants.

7. Where exception is sought to be taken to the refusal of the judge to allow an equitable amendment to such claim, the proffered amendment should be set out literally or in substance in the bill of exceptions. It is no part of the record of the case, and this court cannot consider what purports to be a copy of it sent up by the clerk in the transcript of the record.

Error from superior court, Schley county; Z. A. Littlejohn, Judge.

Action between Mamie Walker and others against the Equitable Mortgage Company, and between the same plaintiffs and the Equitable Mortgage Company and others. From the judgments Walker and others bring error. Affirmed.

J. H. Lumpkin and W. P. Wallis, for plaintiffs in error.

E. A. Hawkins, for defendants in error.

SIMMONS C.J.

The two cases here considered relate to the same matters, and were argued together before this court.

1. When the cases were called for argument, the plaintiffs in error asked leave to withdraw the writs of error. To this counsel who had represented them in the lower court objected, on the ground that their fees were contingent on the result of the litigation, and that they had a right to prosecute the writs of error, although their clients might desire to withdraw them. That an attorney at law has a lien upon suits for the recovery of real property or of money, and that the parties cannot by a settlement among themselves defeat the attorney's lien for fees, is established by our Code and by repeated decisions of this court. Civ. Code, § 2814. That this is true, not only of suits pending in a lower court, but also of cases pending here, was established by Kimbrough v. Pitts, 63 Ga. 496. It was in that case held that, "Counsel have a lien on a suit undertaken by them for fees, and may prosecute such suit in this court in the name of the client for the recovery of such fees, without regard to the objections of the client and his direction to dismiss the writ of error." One of the present cases is a claim setting up title to certain lands, and the other a motion to set aside a decree and reinstate a suit for the recovery of these lands and of a certain amount of money. Thus one case is a suit for land, and the other, while not directly a suit for the recovery of property, seeks indirectly such recovery. We think therefore that, under the authorities cited, the attorneys have a right to insist that the writs of error in these cases be not withdrawn.

2. The bill of exceptions in one of these cases was sued out in the names of several persons as plaintiffs in error, and the payment of costs sought to be avoided by an affidavit in forma pauperis. This affidavit was subscribed by all of the plaintiffs in error save one. Under the ruling in Taylor v. Security Co., 95 Ga. 571, 20 S.E. 636, an affidavit of this character is fatally defective unless subscribed by all of the plaintiffs in error. Recognizing this, counsel for plaintiffs in error moved to amend the bill of exceptions by striking therefrom the name of the person appearing as plaintiff in error who did not sign the affidavit, stating that the name had been inserted in the bill of exceptions by mistake. On an examination of the record, however, we find that this party appears therein as a coplaintiff in the court below with the other plaintiffs in error. If in any case a plaintiff in error may be relieved of the payment of costs by having his name stricken from the bill of exceptions in this court on the ground of mistake, we are clear that it cannot be done in a case like the present. This plaintiff in error was a party to the case in the court below, and the writ of error was prosecuted in his name. He is, therefore, liable for costs. If his name was inserted in the bill of exceptions by mistake, he must look for reimbursement to the person by whom the mistake was committed. We, for these reasons, held that the pauper affidavit was not sufficient, and that the costs must be paid. In accordance with this ruling the costs were duly paid, and the case saved from dismissal.

3. Walker et al. filed a motion to set aside a certain decree, and to reinstate the case in which it was rendered. The Equitable Mortgage Company intervened, and asked that it might be made a party, alleging that it was a party to the decree sought to be set aside and had a substantial interest in such decree. Called upon to show cause why the mortgage company should not be made a party, the movants demurred to its petition of intervention. This demurrer was overruled, and exception taken to this ruling. We are clear that there was no error in overruling the demurrer. The petition demurred to alleged enough to show that the mortgage company had a substantial interest in the case and in upholding the former decree. It was therefore eminently proper that it should be a party to the proceedings to set the decree aside.

4. According to the allegations of the motion to set aside the decree and reinstate the case on the docket, the movants were the plaintiffs in the original case, which was instituted in the superior court against their father for the purpose of recovering certain land from him. The Equitable Mortgage Company intervened in that case, and set up a claim it had against the defendant. During a term of the superior court an order was taken by consent of all the parties that the judge might hear and determine the case in vacation without the intervention of a jury. No action was taken by the judge in the succeeding vacation, and at the next term plaintiffs insisted upon a trial at that term, contending that the power given the court by the consent order had expired with the termination of the vacation intervening between the term at which the order was taken and the subsequent term. The judge decided to the contrary, holding that he had power under the...