Opinion
28800.
DECIDED MARCH 1, 1941.
Complaint; from Fulton superior court — Judge Humphries. September 28, 1940.
A. G. Smith, for plaintiff. Winfield P. Jones, for defendant.
A petition filed by a client in his own name, against an attorney at law, seeking to recover a fee voluntarily paid to the attorney, and other money alleged to be that of the client, is duplicitous. The court did not err in dismissing the action.
DECIDED MARCH 1, 1941.
George Lancaster field his petition against W. F. Brandt, alleging substantially as follows: On or about March 22, 1940, the plaintiff was arrested by officers of the City of Atlanta, and was bound over to the criminal court of Fulton County under a $200 bond. While he was in jail he employed the defendant to represent him in court and to continue so serving him until the charges against him had been terminated, and to advise him in and about all matters in connection therewith. After he was bound over and while he was in jail he gave the defendant $215.50, $200 of which was to post a cash bond for the release of plaintiff from jail; and while he was in jail his wife paid to defendant $60 as defendant's fee for services in representing plaintiff. After these sums were so paid, the defendant procured a professional bondsman to sign a bond that released plaintiff from jail; the condition of this bond was that plaintiff would appear in court when his case was called for trial, and defendant paid said bondsman $15 for signing the bond. This was done without the knowledge of the plaintiff, since he had been advised that the bond would be a cash bond. After he was released from jail the defendant advised him that the money paid to the defendant was sufficient to satisfy all charges against plaintiff, and that plaintiff was at liberty to go where he pleased. The defendant took the plaintiff to the bus station and there aided him in purchasing a ticket to Plant City, Florida; and plaintiff did go to Plant City. He relied upon the advice of the defendant, and did not know that the charges against him were not terminated, and did not know that the money paid to the defendant would not satisfy all the charges, and did not know that he had been misinformed and misled. Sometime after plaintiff got to Florida the charges came on for trial in Atlanta, at which time the defendant knew where the plaintiff was, did not notify the plaintiff, and the bond of the plaintiff was forfeited. Instead of notifying plaintiff of the forfeiture, defendant employed two officers of the City of Atlanta to go to Plant City to bring back plaintiff, and paid said officers $105 for so acting, which money was paid out of the $200 paid to the defendant by the plaintiff. The plaintiff could have got back to Atlanta for $7. After he was returned from Plant City he was again placed in jail, and he tried without success to discuss the matter with the defendant. Thereupon plaintiff employed another lawyer; and when the case came on for trial he was convicted, and received a sentence of eighteen months. He charges that he received said sentence because of the bond forfeiture, which was wholly the fault of the defendant. Plaintiff sought to have defendant appear in his case, but defendant refused, and because of this refusal he should be required to refund all of the sums paid to him, and failing to do so, he should be adjudged in contempt of court. The plaintiff has heretofore brought an action to recover the sums paid to the defendant, and brought the same while the bondsman had part of the money. Now this money has been paid back to the defendant, and the plaintiff has dismissed that action. The prayers of the petition are for a rule nisi directing the defendant to show cause why the sums paid to him should not be refunded, or be held in contempt of court; and that plaintiff have judgment against defendant for refund of the money; for any other rights or remedies, legal or equitable; and for process.
The defendant filed general and special demurrers, which are substantially that the petition is multifarious in that it seeks to combine in one action an action for damages for breach of contract with an action to recover moneys alleged to have been received for the benefit of the plaintiff; that the petition is duplicitous in that it seeks to recover damages for an alleged breach of contract, and on the same set of facts to recover moneys alleged to have been received by the defendant for the benefit of the plaintiff; that there is no equity in the petition; that it does not appear that the defendant is insolvent and unable to respond in damages; that the petition sets forth no cause of action, legal or equitable; and that the affidavit attached to the petition does not meet the requirements of the law.
The court passed the following order: "1. Paragraphs 1 and 2 of the demurrer are sustained, and paragraph 1 of the petition and all allegations and prayers with respect to alleged breach of contract are stricken from the petition. 2. Paragraph 4 of the demurrer is overruled, it not appearing from the petition itself that the action in municipal court was identical as to parties and subject-matter with the subject-matter in this case. 3. Paragraph 3 of the demurrer is sustained and the case is dismissed, for the following reasons: It appears from the petition that the defendant was employed by the plaintiff as attorney at law to represent him in a matter of a case in recorder's court and the criminal court of Fulton County, and that he rendered services as such attorney in behalf of the plaintiff. The defendant would be entitled to reasonable compensation for the services rendered, and as attorney at law would be entitled to hold any moneys in his hands until his fees have been satisfied. The plaintiff seeks to recover money in the hands of the defendant in the capacity aforesaid, without adjustment of fees of the defendant. This suit is not a suit for an accounting and settlement with the defendant, and could not be converted into such an action." The exception is to the sustaining of the demurrers and the dismissal of the petition.
"Where attorneys retain in their hands the money of their clients after it has been demanded, they are liable to rule (and otherwise) as sheriffs are, and incur the same penalties and consequences." Code, § 9-617. The provision for a rule against an attorney at law is penal in nature, and must be strictly construed. Haygood v. Haden, 119 Ga. 463 ( 46 S.E. 625); Clark v. Hilliard, 19 Ga. App. 514 (3) ( 91 S.E. 926); Commins v. Ross, 44 Ga. App. 182 ( 160 S.E. 679). Code § 9-617, strictly construed, refers to money the title to which is in the client. In this case there is no allegation that the $60 fee was fraudulently procured by the attorney, so as to base the claim that the title was in the client, assuming that the petition shows a right to recover it in the plaintiff. The petition here can not be regarded as a proceeding to disbar, suspend, or punish for contempt, because it is not brought in the name of the State, and the law applicable to such proceedings is not applicable to this case. In the absence of any other specific authority of law for ruling an attorney to recover money under such facts as are alleged in this case, we are constrained to hold that no such peremptory rule will lie. A rule will possibly lie to recover the other moneys referred to in the petition, but such rule is improperly joined with a petition to recover the fee, which contains a prayer for process; and the court was correct in dismissing the action, because there was a misjoinder of causes of action, although another reason was assigned. The judgment is affirmed without prejudice, so far as the merits of the causes of action set forth in the petition are concerned; the effect of this court's judgment being that the action should have been and was properly dismissed for the sole reason that the petition contained two alleged causes of action which could not be joined. No ruling is made on the respective merits of the two claims set forth in the petition. Whiddon v. Southern Auto Finance Co., 186 Ga. 726 ( 198 S.E. 729). The judgment is affirmed, with direction that before or at the time the judgment of this court is made the judgment of the trial court the plaintiff shall have a right to elect upon which cause of action he desires to proceed; that upon his doing so the case shall stand for trial upon the petition as thus amended; and that upon his failure to so amend the judgment shall stand unconditionally
Affirmed. Sutton, J., concurs.
The plaintiff asks for a money rule against his attorney, to recover $215.50 and $60, making a total of $275.50. It is alleged that the plaintiff paid to the defendant, as plaintiff's attorney, to represent the plaintiff in a criminal charge against him, the $215.50; that $200 of this money was to be used by the defendant as a cash bond for plaintiff's appearance to answer the criminal charge; and that the defendant paid $15 of the money to a professional bondsman as the bondsman's fee for making a bond for the plaintiff. It is not alleged anywhere that the defendant did not use all of the $200 as a cash bond; but since it is alleged that the defendant used $105 of the money to employ officers to go to Florida and bring the plaintiff to Atlanta, this money was not used by the defendant as a cash bond. It does appear from the allegations of the petition that $85 of the balance came into the defendant's possession. The petition sets out a cause of action against the defendant as respects the $105 and $85 which it is alleged the defendant has misapplied and fails to deliver to the plaintiff. As to the $60 which it is alleged that the plaintiff's wife paid to the defendant as a fee for the benefit of the plaintiff, nowhere does it appear that this money belonged to the plaintiff. Therefore it does not appear that the plaintiff is entitled to recover the $60. Jones v. Moore, 51 Ga. App. 716 ( 181 S.E. 313).
The petition sets out a cause of action to recover of the defendant a portion of the money deposited with him by the plaintiff to be used in the procurement of a cash bond, but does not set out a cause of action for recovery of the $60 paid by the plaintiff's wife to the defendant as a fee for legal services to be rendered by the defendant to the plaintiff. The petition sets out only one cause of action, and that is a cause of action to recover money which the plaintiff delivered to the defendant to be used for the purpose of a cash bond. There can be no misjoinder of causes of action unless both purported causes of action set out in the petition are good. The petition is not subject to demurrer in that there is a misjoinder of causes of action. See Faughnan v. Bashlor, 163 Ga. 525 ( 136 S.E. 545); Jackson v. Chambers, 24 Ga. App. 285 ( 100 S.E. 659); 49 C. J. 394; 21 R. C. L. 523, and cases cited in notes 8 and 9. I am of the opinion that the petition sets out a cause of action, and is good against the general demurrer, and the special demurrer based on the ground of misjoinder. I think the judgment should be reversed. I do not concur in the judgment of affirmance with the direction indicated.