York v. Edwards

• Decision Date: 14 January 1936
• Docket Number: 24876.
• Citation: 183 S.E. 339,52 Ga.App. 388
• Parties: YORK v. EDWARDS et al.
• Court: Georgia Court of Appeals

183 S.E. 339

52 Ga.App. 388

YORK v. EDWARDS et al.

No. 24876.

Court of Appeals of Georgia, Second Division

January 14, 1936

Syllabus by the Court.

1. In the service of a rule nisi issued by the judge in proceedings to foreclose an attorney's lien on land, analogous to a rule nisi in mortgage foreclosure proceedings, the service of an ordinary copy instead of a certified copy of the rule nisi, especially when in effect so provided in the rule nisi does not render the service and proceedings void.

2. But assuming that the service of a certified copy of the rule nisi is the better practice, the service of an uncertified copy in the instant case being at most an irregularity which, when objected to by a plea in abatement and traverse of the officer's return, was properly corrected, under an amendatory order taken during the return term of the original rule nisi, requiring service of a certified copy of the rule nisi, by due service of certified copies of the original rule nisi and the amendatory order, the amended proceedings were not subject to the motion to dismiss or the plea in abatement. The subsequent service relating back to the original petition, which was filed within the period of the statute of limitations, the proceedings were not barred by the statute.

3. The petition with the attached lien, which was made part of the petition, having fully set forth the nature of the proceedings, and of the litigation in which the legal services were performed, it was unnecessary to itemize the fee claimed upon implied contract or quantum meruit by stating specific amounts for specific detailed items of service. The court properly overruled the demurrers based on this ground.

Error from Superior Court, Habersham County; B. P. Gaillard, Jr. Judge.

Proceeding by J. C. Edwards and others against J. L. York to foreclose an attorney's lien against real estate. To review a judgment for plaintiffs, defendant brings error.

Affirmed.

John L. York, of Washington, D. C., for plaintiff in error.

J. C. Edwards, of Clarkesville, and H. E. Edwards, of Atlanta, for defendants in error.

JENKINS Presiding Judge.

This was a petition with a rule nisi to foreclose an attorney's lien against real estate, under the statutory procedure analogous to the foreclosure of a mortgage on real estate. The lien was recorded on August 27, 1932. The petition and a second original were filed on August 18, 1933, and the rule nisi was signed by the judge on August 19, 1933. This was made answerable, as provided by the statute, on the first day of the next term, beginning the fourth Monday in November, 1933. The rule nisi provided that "service of this rule be perfected on said [two defendants] as provided by law by second original or publication." The defendant, now excepting to the procedure, who resided in De Kalb county, was served on August 28, 1933, "personally with a copy of the within petition and order." On November 27, 1933, that defendant filed a traverse of the officer's return and a plea in abatement, attacking the return and the jurisdiction of the court on the ground that the process and purported service were defective and illegal because the purported copy of the rule nisi served had not been certified by the clerk. On the same date, the defendant filed general and special demurrers and an answer to the merits of the petition, reciting that both pleadings were filed without waiving his traverse or plea in abatement. On February 3, 1934, before adjournment of the November term, 1933, on ex parte motion by the plaintiffs, the judge signed an amended rule nisi, setting forth the previous procedure, the service of the copy of the original rule nisi, the contention of the plea that it was void and a nullity, and ordering that the original rule nisi and the amending order be served on the defendant by serving certified copies of such orders as well as the petition; and that the defendants pay the lien debt into court by the first day of the next term, the March term, 1934, "or the next succeeding term of said court to which service and return thereof can be lawfully perfected." Service as thus provided was made on the defendant on February 26, 1934. On June 2, 1934, without waiving his previous pleadings, but insisting thereon, the defendant filed a motion to dismiss the petition and action, on the following grounds: That the order of February 3, 1934, had been granted ex parte without notice, that the original rule nisi and attempted service being void and "functus officio," no suit was legally pending when the amending order was made, after the return term and during the trial term of the case, and the court was without authority to make the order, and that the rule nisi not having been legally served, the foreclosure suit was not commenced within twelve months from the record of the lien, August 27, 1932, and was barred by the statute of limitations. The demurrers attack the failure to set forth the contract or itemize the legal services for which the lien was claimed. The petition and attached copy of the recorded claim of lien of $300, made part of the petition, stated that the services were the successful defense of the defendants through five years of litigation in a specifically described case, resulting in an alleged benefit to the defendants of the value of $9,900. Error is assigned on a verdict and judgment for the plaintiffs, because of the rulings adverse to the defendants on the pleadings stated; but no question is presented, under the evidence as to the merits of the case.

1. "Void process may not be amended nor in the absence of waiver may process be supplied." Code 1933, § 81-1313. "No technical or formal objections shall invalidate any process; but if the same shall substantially conform to the requisites of this Code, and the defendant has had notice of the pendency of the cause, all other objections shall be disregarded: Provided, a legal cause of action as required by this Code is set forth." Code, § 81-220.

"A proceeding to foreclose an attorney's lien upon real property is to be brought as is a proceeding to foreclose a mortgage upon land. * * * The process is a rule nisi issued by the court, and not a process issued by the clerk as in ordinary cases." Moss v. Strickland, 138 Ga 539, 541, 75 S.E. 622, 623; McCalla v. Nichols, 102 Ga. 28, 28 S.E. 988; Montgomery v. King, 123 Ga. 14(2), 50 S.E. 963; Code 1933, §§ 9-613, 67-201, 67-2301. While the rule nisi signed by the judge differs from the process issued by the clerk in ordinary cases, under Code 1933, §§ 81-201 to 81-220 inclusive, in that there must be personal service or service by publication, and the leaving of a copy at the defendant's residence is not sufficient, as well as differing in other respects [ Southern States Phosphate Co. v. Clark, 149 Ga. 647(2), 101 S.E. 536; Moss v. Strickland, supra], it is nevertheless in many respects analogous to regular process. Thus, as in the case of ordinary process served an insufficient length of time before the appearance term, which the statute makes good for the next succeeding term (Code 1933, § 81-218), it has been held that "a rule nisi issued upon a petition to foreclose a mortgage upon realty, service of which is made prior to the term at which the mortgagee is directed to pay the money into court, but too late to be due service for that term, goes over, and becomes returnable to the next...