Hurst v. Whitly

Montgomery, Judge. 1. It certainly would “shock the moral sense” to allow the parties moving the rule in this ease, against the partitioners, now to come into Court and hold the partitioners liable for an amount which they have, in good faith, paid over to the attorneys of the movants, at the instance of the latter so formally indicated as by a petition to the Judge at Chambers to. compel the payment. If there ever was a ease of estoppel this is one. To deny the authority of the Judge to pass the order for payment with which the partitioners complied, is, on the part of the movants, to deny their own solemn act entered of record in a matter in which they were the pro-movants. Were the Courts to tolerate such a proceeding, they would become mere engines of oppression instead of tribunals for the adjudication of rights. The tenants in common, in this case, must look to their counsel for their money. They,, themselves, have discharged the partitioners from all further liability by the order which they obtained on their own motion. , 2. The order of attachment and imprisonment was also [369] error, even had the order for the payment of the money been correct. The partitioned should first have been called .on to show cause why an attachment should not issue: Davis vs. Irwin, 8 Ga., 153. Judgment reversed.