Smith v. Goode

— Benning J. By the Court. delivering the opinion. Motion was the form of procedure in this case, and the first question is, was that an allowable form of procedure? [1.] Motion is an ordinary form of procedure against attorneys at law, "sheriffs, clerks, and other officers of Court, te enforce rights existing against them, in their official character, such as the right to money collected by them for suitors-That the plaintiff may rule his attorney for money of his, collected by the attorney, there can be no doubt. And if the> plaintiff may rule him in that case, why may not an associate attorney rule him in the case in which it happens that he has collected the money of their common client — money,, therefore, upon which they have each a lien for their fees-The lien gives the associate attorney a perfect right to have so much of the money as will pay his fees. Why, then, may not he, too,rule for his money? We see no reason why he may not. We, therefore, agree with the Court below, that motion was a proper form of remedy in this case. The next question is, was the notice given of the motion, to James S. Walker and Nathaniel F. Walker, Jr., sufficient ? The motion was not against them, but against their attorney at law, James M. Smith, who was the one of their attorneys that had collected a portion of their judgment, and had the money in his hands. And there is no question but that the notice to him was sufficient, so far as he was concerned-Was it necessary that there should be notice to anybody but him? He alone had the money; he alone, perhaps, was subject to a rule; and he was bound to make all due resistance to the motion ; for if the motion went against him, improperly, the judgment would be no protection to him [192] against his clients, the plaintiffs in the judgment, they being-no parties to the motion, and they, consequently, would be able to collect the amount of the judgment- out of him, and thus they could make him pay the money twice. When the Sheriff is ruled, he alone is served with the rule; and this is so, even in the case in which there are several claimants of the fund. We, therefore, are not prepared to say that, there was a necessity for notice at all to the plaintiffs in the judgment — a necessity for notice to any but Smith. Concede, however, that a' notice to the -plaintiffs in the judgment was necessary, did they not have it? Grant, one •of them, is not complaining; so we may dismiss the question as to him, The other two, James S. and Nathaniel F. Walker, Jr., were represented by their attorney at law, Mr. Harris. They appeared by him, and defended the case, in Smith’s place. The Court, it seems, allowed them to do so, as a matter of course. Very well. If they took Smith’s place, they had to take it as Smith held it, and he held it under sufficient notice. In this veiw, then, they had sufficient notice. But even if this view is wrong, there' is another, a third view, that will show, we think, beyond question, that there is nothing in this ground of a want of notice. Conceding that they were entitled to notice, what was the kind of notice to which they were entitled ? Reasonable notice; no other. For aught that appears, they had reasonable notice by their attorney, Mr. Harris. When the motion was called, he appeared for them, and objected to the motion, amongst other things, that there was no notice of it to his clients. He, at that time, at least, if not before, had notice of the motion. Did he need any earlier or other notice than that? It does not appear that he did. It is to be presumed that be did not, because he did not suggest that he was not ready for the motion ; as ready as he would have been if he had had a month’s notice of it. He did not move for a continuance of the case, or even ask for its temporary postponement. We are bound to presume, therefore, that he was [193] -ready for the case; if so, the notice, however short, was reasonable notice, for what is the reason for notice in any case? It is only to enable the party to get ready for his defence. [2] Ve think, then, that for this, if not for the other two .reasons, there was a sufficient notice to the two Walkers, plaintiffs in error. The next and last question is, whether the case should, ■have been tried by a jury, as the plaintiffs in error requested that it should ? This is a question not free from difficulty. We think that the case ought to have been tried by a jury. It. was a case in which there was, in substance, a suit for unliquidated damages; a case in which the suit had ceased to be a suit, except in form, against the attorney, the party subject •to the rule, and had become a suit, in substance, against his clients, parties not subject to the rule. And the questions,so far as they were concerned, were precisely the questions that would have existed, had they been sued by regular action for the fees. And if the suit had been in that form, they would have been entitled, beyond question, to a jury trial. They requested a jury trial. We think that in every such a case there ought to be a jury trial. [3.] We think, therefore, that the Court, in refusing a jury trial, erred, and, consequently, that there ought to be a new trial. On the other questions, the conclusions to which we have come are the same to which the Court below came. What has thus been said, is applicable to each of the five cases. Judgment reversed and new trial granted.