Winslow Bros. Co. v. Murphy

• Decision Date: 15 January 1913
• Citation: 77 S.E. 25,139 Ga. 231
• Parties: WINSLOW BROS. CO. v. MURPHY.
• Court: Georgia Supreme Court

77 S.E. 25

139 Ga. 231

WINSLOW BROS. CO. v. MURPHY.

Supreme Court of Georgia

January 15, 1913

Syllabus by the Court.

Where one claiming to have a right of action against another, on account of personal injury, employed an attorney, and by written contract agreed to pay him one-half of any sum realized from the claim by settlement, suit, or compromise (after paying certain expenses), if the client settled with the person claimed to be liable before suit was brought without the knowledge or consent of his attorney, this did not authorize the attorney to bring suit in the name of his client for the purpose of recovering his fee, although the person claimed to be liable made the settlement after notice of the contract between the attorney and his client.

(a) Where a suit was so brought and the petition showed such facts, it was demurrable.

Error from Superior Court, Fulton County; Geo. L. Bell, Judge.

Action by J. P. Murphy against the Winslow Bros. Company. Judgment for plaintiff, and defendant brings error. Reversed.

Anderson Felder, Rountree & Wilson, of Atlanta, for plaintiff in error.

A. H Davis, of Atlanta, for defendant in error.

LUMPKIN J.

A man claiming to have a right of action for a personal injury employed an attorney, and in writing agreed that for his services the client should pay him one-half of any sum realized from the claim by settlement, suit, or compromise provided that the expenses of the client for doctor's bills and drug bills were to be paid "before dividing the amount received on the claim." The attorney brought an action in the name of his client, alleging that the attorney was negotiating with an agent of the defendant for a settlement, and that the latter had notice of the contract by which he was to receive a part of the recovery or settlement, but nevertheless settled with the client, without the knowledge or consent of the attorney. It was not distinctly stated that the settlement was made before the suit was brought, but it is inferable from the allegations of the petition, which are to be taken more strongly against the pleader; and the case was argued on that theory. There were allegations as to the liability of the defendant to the plaintiff for the injury. The court overruled the demurrer to the petition, and the defendant excepted.

As the law was embodied in the Code of 1863, it was declared that the attorney's lien should attach for his fees, and for a general balance on all sums collected by him, and upon all property recovered by his services. Provision was also made in regard to the right of an attorney condemning property to a fee from the proceeds, although older liens might demand and recover such proceeds from his immediate client. The next section (1990) was as follows: "Parties cannot, by settlement between themselves, defeat the attorney of any lien or claim under contract with his client of which the opposite party had notice prior to the consummation of such settlement." The law, as thus codified, was carried forward into the Code of 1868 (section 1980). In 1873 an act was passed which was entitled "An act to regulate the law of liens in the state of Georgia." It dealt with liens of various kinds. It declared that attorneys should have a lien on all papers and money of their clients in their possession for services rendered, and might retain such papers until such claims were satisfied, and might apply such money to the satisfaction of such claims. They were also given a lien "upon suits, judgments and decrees for money," and it was declared that "no person shall be at liberty to satisfy said suit, judgment or decree, until the lien or claim of the attorney, for his fees, is fully satisfied;" and also that "attorneys at law shall have the same right and power over said suits, judgments and decrees to enforce their liens, as their clients had or may have for the amounts due thereon to them; upon all suits for the recovery of real or personal property, and upon all judgments or decrees for the recovery of the same, attorneys at law shall have a lien on the property recovered, for their fees, superior to all liens but liens for taxes." Acts 1873, pp. 42, 46. In the Code of 1873 and that of 1882, the codifiers omitted section 1990 of the Code of 1863, above quoted, inserting a memorandum that it had been superseded by the act of 1873. In Haynes v. Perry, 76 Ga. 33 (decided in 1885), Blandford, J., said in the opinion that the section mentioned had never been altered, and was still the law. But in that case the attorney had recovered a judgment, which he was seeking to collect by execution in order to pay fees due to him by his client. The decision was made to turn upon a failure to traverse the answer of the sheriff to a rule against him to compel him to pay over a fund in his hands. In Little v. Sexton, 89 Ga. 411, 15 S.E. 490, that case was cited and limited.

The act of 1873 as to attorney's liens was codified in the Code of 1895 as section 2814, and in the Code of 1910 as section 3364. Each of these Codes was adopted by statute, and in neither of them did section 1990 of the original Code appear. The act thus codified broadened the previous law as to attorney's liens. The section of the original Code which is quoted above was a part of the law as it stood before that act, and we think has been superseded by the act, the codification omitting that section, and the adoption of the Codes. The broader general act took the place of the narrower law contained in the first Code; and we cannot hold that the remark of Blandford, J., was a conclusive ruling to the contrary. Were it otherwise, it would nevertheless be questionable whether the words "parties" and "opposite parties," employed in the original Code and that of 1868, did not mean parties...