Twiggs v. Chambers

56 Ga. 279

• Court: Supreme Court of Georgia
• Decided: January 15, 1876
• Status: Published

Opinion

Bleckley, Judge.

“ 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,” etc.: Code, section 1989. The lien on the property is not perfect until after recovery; but there is a lien on the suit which is perfect at once, and the lien on the property is inchoate. Especially is this so when, as in the present case, there is a special contract for the payment of the attoney’s fee out of the proceeds of the suit.

Notwithstanding some incompleteness in the expression, it appears to us to have been the purpose and intention of the legislature to give a lien upon the suit and the judgment, and not alone upon the property; but if it were otherwise, an engagement that the attorney shall be paid out of the proceeds of the suit is a promise that the lien may be perfected on the property if it can be done by a recovery. To employ an attorney to sue for property under such a contract, is in the nature of a power with an interest, and such a power is irrevocable: Code, section 2183. The undertaking that the fee shall be paid out of the recovery is, again, in the nature of an equitable assignment of an interest in the recovery: 4 Cow., 416; 15 Johns., 405. Here the recovery might have been directly in money. The action was for personal property and its hire. It was brought in the short form. In such a suit the plaintiff could elect to take a verdict for mone: Code, sections 3390, 3564.

It seems from the record that the plaintiff sent written instructions to her attorneys to dismiss the action, and that they declined to do so, without payment of their fee. We think their objection was good, according to the showing they made as cause for the objection. As the matter was presented to the court, it was a question between the plaintiff and her attorneys alone. The defendant had no interest in it. It did not appear that the case had been settled, or that he had paid anything to have it dismissed. Besides, the plaintiff's attorneys alleged that they could establish the fact that the defendant had notice of their contract with the plaintiff: See Code of 1868, sections 1979, 1980; Code of 1873, section 1989; 36 Georgia Reports, 630; 39 Ibid., 310. The contract for a fee tobe paid out of the proceeds of the suit, was not champertous: Moses vs. Bagley & Sewell, 55 Georgia Reports, 283. The court erred in holding that the plaintiff had a right to dismiss the suit.

Judgment reversed.