Breen v. Phillips

149 S.E. 565, 169 Ga. 13, 1929 Ga. LEXIS 270

• Court: Supreme Court of Georgia
• Decided: September 10, 1929
• Docket: No. 7151
• Status: Published

Opinion

Hines, J.

1. The right to enforce payment of money by rule is penal in its nature, and must be strictly construed.

(ft) Tlie right to rule an attorney for_ the payment of money depends upon the existence of the relation of attorney and client, and is limited to the client.

(6) Where an attorney for the plaintiff in a receivership proceeding, to whom the defendant therein, after the dismissal of such proceeding by the plaintiff, delivered a check payable to the order of the defendant and by him indorsed to the receiver, and turned the same over to the attorney, to be delivered to the receiver in payment of the part of his fee assessed against the defendant in the order dismissing the receivership proceedings, and the attorney procured the drawer of the cheek, without authority from the receiver and defendant, to strike out the name of the receiver from such indorsement, and to insert in lieu thereof the name of a firm of attorneys of which the attorney was a member; and where the firm collected said cheek, but remitted only a part 'of its proceeds to the receiver, such attorney was not subject to rule by the receiver for the payment of the balance of the proceeds of the cheek. Whittle v. Newman, 34 Ga. 377; Haygood v. Haden, 119 Ga. 463 (46 S. E. 625) ; Haden v. Lovett, 133 Ga. 388 (65 S. E. 853, 18 Ann. Cas. 114); Knight v. Rogers, 22 Ga. App. 308 (95 S. E. 997); Smith v. International Lawyers, 35 Ga. App. 158 (132 S. E. 245). The case of Smith v. Goode, 29 Ga. 185, is distinguishable, for the reason assigned in Haygood v. Haden, supra.

No. 7151. September 10, 1929.

2. Such attorney was not liable to the receiver or his attorney for the payment of services rendered by the receiver’s attorney in bringing this rule.

3. The liability of the attorney to the receiver, otherwise than by rule, is not now for decision by this court.

Judgment reversed.

All the Justices concur. George G. Finch, C. L. Padgett, and Roy S. Drennan, for plaintiff in error. D. P. Phillips, A. L. Richards, J. A. McCurdy Jr., and B. H. Burgess, contra.