McNulty v. Pruden

Bleckley, Justice. 1. The motion made to dismiss the writ of error for the the non-joinder of those defendants in the bill to whom precedence or priority in sharing the assets of the estate was decreed below, could be met and avoided only by an amendment introducing said co-defendants as co'-plaintiffs in error here. The amendment may be made instanter, the record affording matter to amend by, (Code, §4288; 1 Ga., 403; 8 Ib., 317; 12 Ib., 270; 49 Ib., 388,) and when made, it will be the privilege of the new parties to sever with the old, and decline to take part in prosecuting the writ. Because of their interest in the judgment to be rendered here, it-is necessary for them to' be before this court as parties, but that very interest entitles them to take whichever side of the case they please. After severing from their co-plaintiffs in error, they may aid in defending here, and in upholding the judgment rendered below. It has been suggested that the amendment would have to be followed by notice to them; but this is incorrect, for they must take notice at their peril that the cause has been brought here by their co-parties. If it had been brought up by the complainant below, and not by some of the defendants, other rules would apply. Between adding new plaintiffs in error [139] and adding new defendants in error, the difference is considerable ;■ so is it in regard to giving notice or effecting service. A plaintiff in error is not to be served, whether he comes up by his own act or by the act of his co-plaintiffs. But a defendant in error must be served as the statute prescribes. Code §1259. The only necessary defendant in error was the complainant below; that is, the administrator, and he was duly served. On the requisite parties as plaintiffs in error, the right to sever, etc., see 3 Bac. Abr., 335, 336; 6 Ga., 207; 7 Ib, 510; 10 Ib, 2; 18 Ib, 619, 620; 26 1b, 398. 2, 3, 4. The privilege of amending having been accepted and exercised, the merits of the case, are to be passed upon. And, first, it is tó be observed that the question of liquidated demands, as now presented, stands clear of the act of February 21, 1877 (pam. p. 19}, which act gives rank to such acknowledgments only as are evidenced by writing. The act is too recent to be invoked on the present occasion, the intestate having died before it was passed. The seventh paragraph of section 2533 of the Code enumerates the debts which are to be ranked as liquidated demands in distributing this estate, the relative rights of the creditors having become fixed at the time of the intestate’s death. The words of that paragraph are as follows : “ All liquidated demands, including foreign judgments, dormant judgments, bonds, and all other obligations in writing for th.e payment of money, promissory notes, and all debts the amount due on which was fixed and ascertained or acknowledged prior to the death of the decedent.” The book entries made by the debtor in his lifetime, and his oral recognition of his books as correct, upon the day before his death, would serve, we think, to acknowledge the amount shown'against him on balancing the account of McNulty, George & Hall as contained in the books. It was, doubtless, to these creditors and others whose accounts, were in the books, that he re. ferred as “foreign creditors.” The books alone would prove the debt, without a word of evidence from the out [140] side ; and this they would do by virtue of the admission or acknowledgment- of the debt by the debtor, as deduced from the entries. Indeed, .we do not well see why such entries would not come up even to the requisitions of the new statute, and be the acknowledgment in •writing-which it requires. McNulty, George & Hall are claiming only to the extent of amount or balance shown in their favor by the deceased debtor’s books, and not beyond it. In regard to the consignment of salt by the Holston Salt and Plaster Company, the record seems to indicate that the deceased had credited the company with the consignment, and sold out for cash. He thus had the company’s funds in his hands, and, as we understand the record, the amount can. be arrived at from the entries made by the deceased in his own books. ■ - At-all events, the administrator returns it in his bill. He probably acquired his information from the cash book if not from the account book. The fees of the counsel who were employed by the intestate in his life-time at round sums expressly agreed upon, were liquidated to the extent of one half, if there was no stipulation making the retainer less than half, and no abandonment of the cases, or other default, on the part of the counsel. This results from section 406 of the Code, which declares that, “ Unless otherwise stipulated, one-half of the fee in any cause is a retainer, and due at any time, unless the attorney, without sufficient cause, abandons the case before rendering service to that value; but in cases where he has rendered such service, and cannot render the balance of service — -from the act of his client, providential cause, election to office, or removal out of the state — he is entitled to retain the amount or a due proportion, if collected, or sue for it and collect it, if not; where no special contract is made, the attorney may recover for the services actually rendered.” There is some degree of confusion and obscurity in a part of this language, but the meaning seems to be that one-half of the agreed fee is a retainer and due immediately, as a general rule, and that from that half no deduction is [141] to be made if the attorney beeps himself in a situation to render the stipulated services, and does not at any time neglect or violate his duty. An apportionment tabes place, perhaps, even as to this half, where, by election to office, removal from the state, or providential incapacity the attorney becomes unavailable to the client; but where the client is at fault, or where the providential visitation is to him, we cannot suppose that the law intends the retainer to be reduced. Why should it be reduced ? In the nature of things, a retainer is earned when the attorney dedicates himself by contract to his client’s service, thereby cutting himself off from employment by the adverse party. The sub - sequent voluntary, or even involuntary, disability on his part to render the service contemplated, may well work a forfeiture of the retainer, in- whole or in part; but so long as the attorney remains able and willing to perform all the service for which he contracted, neither the fault nor the misfortune of his client ought to affect him — certainly not, beyond that half of the fee to which the quality of a retainer does not belong. A proper application of what we decide, to the claims for fees by the firms of Johnson & McCamy and Hanks & Bivings, would be to allow each firm twelve dollars and fifty cents as liquidated. Perhaps, it would be safest not to attempt any apportionment of the agreed fee of twenty-five dollars between the two eases (the misdemeanor and the felony) as such apportionment would depend upon matters extrinsic of the contract. For decisions heretofore made by this court as to what constitute liquidated demands, see the reports cited by the counsel for the plaintiffs in error. Judgment reversed.