Lancaster v. Brandt

Felton, J. (After stating the foregoing facts.) "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) ; Commons 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 ease. In the absence of any other specific authority of *432 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.