Opinion
34007.
DECIDED MAY 9, 1952.
Appeal; from Fulton Civil Court — Appellate Division. January 18, 1952.
Lucian J. Endicott, for plaintiff in error.
Harold Sheats, E. A. Wright, Standish Thompson, Durwood Pye, contra.
The petition did not allege a cause of action, and the Appellate Division of the Civil Court of Fulton County erred in affirming the judgment of the trial court overruling the demurrer.
DECIDED MAY 9, 1952.
T. J. Grogan, "in his official capacity as Marshal of the Civil Court of Fulton County," brought this action in the Civil Court of Fulton County against Lucian J. Endicott, an attorney, and R. L. Blankenship, and alleged in his petition: "1. In the case of R. P. Dupree and Mrs. R. P. Dupree versus R. L. Blankenship and Harry G. Cline, Jr., Number 212491, said court, which was a proceeding to foreclose a contract retaining title, profert of all of the papers in said case now being made to the Court, your petitioner, in his official capacity as Marshal, levied upon the property described in the execution issued in connection with said foreclosure proceeding. 2. Thereafter your petitioner, as Marshal aforesaid, proceeded to expose the property levied upon and seized in said foreclosure proceeding, and same was knocked down to plaintiffs therein for the sum of $3,000.00, which sum was sufficient to satisfy the several amounts recovered by plaintiffs in the affidavit made in said foreclosure proceeding, except for the sum of $33.49. 3. In said foreclosure proceeding the affidavit of foreclosure claimed the sum of $250.00 as attorney's fees; and said $3,000.00, the bid at said sale, was applied to said attorney's fees to the extent of $216.51. 4. Thereafter there was filed in said court the case of Mr. and Mrs. R. P. Dupree versus R. L. Blankenship, Number 216053, said court, profert of all of the pleadings in this case being made to the Court. 5. In said case last mentioned, which was a petition in trover for certain personal property, answer and cross bill were filed by R. L. Blankenship, and said case resulted in a verdict and judgment, of record in said case, holding that the sum of $250.00 attorney's fees referred to above in case Number 212491 was uncollectible, and said judgment directed your petitioner, as Marshal aforesaid, to recalculate the payment shown therein (referring to case Number 212491) eliminating the item of $250.00 attorney's fees inadvertently allowed therein, and to adjust the payment of proceeds of sale therein shown accordingly. 6. Said verdict and judgment last above mentioned in case Number 216053 is now a final verdict and judgment, and your petitioner has called upon plaintiff's attorney in said cases, Lucian J. Endicott, Esquire, to pay to your petitioner the sum of $216.51, heretofore allowed and paid as attorney's fees in said foreclosure proceeding, in order that your petitioner might comply with said judgment, eliminating the recovery of attorney's fees, and pay said sum of $216.51 over to R. L. Blankenship. 7. Petitioner shows that the plaintiff's in said cases are non-residents of this State, and that Lucian J. Endicott, Esquire, their Attorney, has declined to pay to your petitioner said sum of $216.51. 8. Petitioner shows that in order to comply with the order and direction and judgment of this Court it is requisite that plaintiff's said attorney pay to your petitioner said sum, which he has heretofore received as attorney for said plaintiffs, in order that adjustment may be made and said sum paid to said R. L. Blankenship, as required by the order and judgment of this Court. Wherefore, petitioner prays that rule nisi issue directed to Lucian J. Endicott, Esquire, and R. L. Blankenship, directing them to set up before the Court their respective contentions with respect to the matters aforesaid."
Lucian J. Endicott filed a plea to the jurisdiction, a plea of misjoinder of parties, a demurrer, and an answer. On motion the court struck the plea to the jurisdiction, found against the plea of misjoinder of parties, and overruled the demurrer, all of which were excepted to pendente lite. On the trial of the action the court found for the plaintiff. The defendant Endicott's motion for a new trial was overruled, and he excepted to this judgment and assigned error on his exceptions pendente lite to the Appellate Division of the Civil Court of Fulton County. The appellate division affirmed the judgments of the trial court, and the defendant Endicott excepts.
The demurrer to the petition should have been sustained. If the petition is construed as one for a money rule under Code § 9-617, it did not allege the essentials of a money rule. A right to a money rule under this Code section depends upon the existence of the relation of attorney and client, and is limited to the client. Breen v. Phillips, 169 Ga. 13 (1a) ( 149 S.E. 565); Knight v. Rogers, 22 Ga. App. 308 ( 95 S.E. 997); Smith v. International Lawyers, 35 Ga. App. 158 ( 132 S.E. 245). In the instant case, there was no relationship of attorney and client between the plaintiff and the defendant Endicott.
The petition did not state a cause of action under any theory. Attorney's fees contracted for in instruments such as the one foreclosed in case number 212491, referred to in the statement of facts, are for the benefit of the vendor under the retention-of-title contract and not for the benefit of his attorney. Carson v. Blair, 31 Ga. App. 60 (2) ( 121 S.E. 517). The defendant Endicott, as attorney for the Duprees, was the Duprees' agent as to the whole proceeding. It was not alleged that Endicott had not accounted to his clients in full for the disposition made of the property, and that he had money or property of the clients with which to answer the "rule." In an action of this kind such an allegation was essential. No fraud or bad faith on the part of Endicott in the procurement of the judgment for attorney's fees was alleged. The funds which Endicott realized for his clients out of the disposition of the property were lawfully acquired. McDonald v. Napier, 14 Ga. 89 (3). Attorney Endicott was not guilty of any misconduct in connection with the judicial proceeding which would give the court an opportunity to invoke those inherent powers it has over its officers to correct any effects of misbehavior of such officers in connection with judicial proceedings. Where money is mistakenly paid to an agent and he, without notice of such mistake, turns the money over to his principal, resort must be had against the principal and not the agent for the recovery of the money mistakenly paid to the agent. McDonald v. Napier, (headnote 1), supra; Pratt v. Foster, 18 Ga. App. 765 (2) ( 90 S.E. 654); Code, § 4-403. The fact that the principals are non-residents does not alter this principle of law. The plaintiff did not allege that Endicott had notice of the mistake before he presumably accounted to his principals; therefore he could not be held liable for the mistakenly paid attorney's fees.
It is not necessary to rule on the other exceptions.
The Appellate Division of the Civil Court of Fulton County erred in affirming the judgment of the trial court overruling the demurrer to the petition.
Judgment reversed. Sutton, C.J., and Worrill, J., concur.