Young v. Harris

• Decision Date: 19 December 1916
• Docket Number: 197.
• Citation: 91 S.E. 37,146 Ga. 333
• Parties: YOUNG ET AL. v. HARRIS ET AL.
• Court: Georgia Supreme Court

91 S.E. 37

146 Ga. 333

YOUNG ET AL. v. HARRIS ET AL.

No. 197.

Supreme Court of Georgia

December 19, 1916

Syllabus by the Court.

An attorney whose contract with his client provides that he is to be paid a certain sum in all events, and a larger sum if the attorney's client is successful, has no such interest in the subject-matter of the litigation as to disqualify the judge, who is a brother of the attorney, from presiding in the cause.

Error from Superior Court, Walker County; A. W. Fite, Judge.

Action by Don Harris and others against J. C. Young and others. There was a judgment for plaintiffs, and defendants bring error. Reversed.

Hill J., dissenting.

Shattuck & Shattuck, Earl Jackson, and Paul D. Wright, all of La Fayette, and Barry Wright, of Rome, for plaintiffs in error.

Wm. E Mann, of Dalton, and R. T. Wright, of Chattanooga, Tenn., for defendants in error.

EVANS P.J.

On March 25, 1916, A. H. Neal and others, as citizens and taxpayers, for themselves and on behalf of other citizens and taxpayers, brought a petition to the superior court of Walker county against John C. Young and others, as commissioners of roads and revenues of Walker county, the city of La Fayette and the mayor and council thereof, the Little-Cleckler Construction Company, the Horn-Brannon Company, and T. H. Payne & Co., as defendants, to enjoin the execution of certain contracts for the building of a courthouse. Petitioners asked that these contracts be declared illegal and be canceled, and that the board of roads and revenues be restrained from levying taxes for the purpose of carrying out the contracts, etc. Certain plaintiffs who joined in the case employed, with other counsel, R. T. Wright, Esq., and agreed to pay him a fee certain, and an additional fee in the event they prevailed on the trial of the case. This petition was presented to Hon. A. W. Fite, judge of the superior courts of the Cherokee circuit, who issued a rule to show cause why a temporary injunction should not be granted. In the rule nisi Judge Fite stated that he assumed jurisdiction on account of the disqualification of Judge Moses Wright of the Rome circuit. On the interlocutory hearing it was admitted that R. T. Wright, Esq., was a brother of Judge Moses Wright of the Rome circuit, and that he had contracted with his client to charge him $50 if the plaintiffs lost their suit, and $75 if they were successful. Judge Moses Wright is the judge of the superior courts of the Rome circuit, which embraces the county of Walker, the venue of the action. Judge Fite is the judge of the superior courts of an adjoining circuit. Under the statute, Judge Fite's authority to entertain jurisdiction in the case depends on Judge Wright's disqualification.

A judge is not disqualified to preside in a case because his brother is the attorney for one of the parties, and the size of his fee is dependent on his success in the case. There is no statute or canon of law which disqualifies a judge on the ground of relationship to the attorney of one of the parties to a cause. Such disqualification must result only when he has a pecuniary interest in the subject-matter of the litigation. This is made clear by Mr. Justice Cobb in the case of Roberts v. Roberts, 115 Ga. 259, 41 S.E. 616, 90 Am.St.Rep. 108. That case concerned the allowance of alimony to be paid by the husband to the wife, which included counsel fees. The wife's attorney, in the event she prevailed, would be allowed reasonable counsel fees, which fees would go directly to the attorney as a part of the sum decreed to be paid by the husband. In the opinion it is made plain that, having direct pecuniary interest in the res, the attorney's relation to the case was that of a quasi party. In the instant case the attorney has no interest in the res; he can recover nothing from the adversary party by virtue of his contract with his client, which is altogether outside of the subject-matter of the litigation. Such a contract gives the attorney no more interest in the litigation than if his contract were that his fee should be one sum should the trial occur at the first term, and a different sum should the trial take place at a later term. Were the rule otherwise, it would be impossible for a judge to ever preside in a case where one of the attorneys is a kinsman within the fourth degree of consanguinity or affinity. The statute gives the attorney a lien for his fees in cases where the same are for a fixed amount. It is the client's recovery which furnishes the property against which the lien may be asserted. If the judge be disqualified because the attorney related to him contracts with his client that his fee is to be one sum if he loses and another if he wins, he would, by parity of reasoning, be also disqualified in every case when he is related to the attorney; because the attorney can only assert his statutory lien on property recovered in the suit. Judge Wright was not disqualified, and the entire proceeding before Judge Fite was unauthorized by law, and void as being coram non judice.

Judgment reversed.

All the Justices concur except--

HILL J. (dissenting).

Was Judge Wright, of the Rome circuit, disqualified from presiding, under the facts of this case, so as to confer jurisdiction on Judge Fite, of the Cherokee circuit? The evidence on this point tended to show, in fact, it is stated in the bill of exceptions, that:

"It is admitted that R. T. Wright, attorney for plaintiffs, has a conditional fee in the case, being $50 if plaintiffs lose, and $75 if they win. He is a brother of Judge Moses Wright."

In the case of Roberts v. Roberts, 115 Ga. 259, 41 S.E. 616, 90 Am.St.Rep. 108, this court held:

"A judge who is related within

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