Swift v. Register

Atkinson, Justice. The official report states the facts. Whether or not the settlement of the original cause of action between the parties, with the approval of one of the counsel for the plaintiffs, is binding likewise upon his associate counsel to the extent of preventing a further prosecution of the suit by the latter for the purpose of recovering a contingent fee, Ave will not in the present case pause to inquire. This was permitted by the trial court. To the successful prosecution of such an action, after settlement between the original parties, by the counsel employed upon a contingent fee, for the purpose of recovering the fee stipulated to be paid to him in the event of a recovery, it is absolutely indispensable that he should prove by competent evidence [449] the right of the plaintiffs to recover in the original case. See Rodgers v. Furse, 83 Ga. 115, which is directly in point to this proposition. When we look to the record in this case, we find no evidence upon which a verdict could possibly rest in favor of the plaintiffs against the defendants had the parties been at issue upon the original suit. The action involved a settlement of accounts between the parties touching the operations of a saw-mill and various other business enterprises between them; and the only evidence of the right of the plaintiffs to recover is to be found in the opinion expressed by one of them, when put upon the witness stand, to the effect that they, the plaintiffs, were entitled to recover $1,300 in this action. This was purely a matter of opinion and conjecture; it was the very question the jury was entitled to try, and the witness was not competent to decide that question for them. With the case in this condition, and upon this main feature of the defendants’ liability there being no evidence upon which a verdict could legally be rendered against them, the court did not err in directing a verdict in their favor; and for that reason the judgment of the court below is Affirmed.