Watters v. Wells

Hill, C. J. An execution from a justice’s court in favor of Wells against Watters was levied on personal property. Watters filed an affidavit of illegality, setting up payment of the fi. fa. Upon the trial it appeared that, pending the suit brought by Wells against Watters in the’ justice’s court, and before judgment had been obtained therein against Watters, Doss had garnishment proceedings served on Watters requiring him to answer what he owed Wells. Watters answered the garnishment, denying indebtedness, and this answer was traversed by Doss. Subsequently a judgment was entered in the suit by Wells against Watters for $71.93. After this judgment, which concluded the issue on the garnishment in favor of the traverse, Wells’ attorney instructed the justice of the peace to enter a judgment in favor of Doss, garnishing creditor, against Watters for the full amount of the judgment in favor of Wells and against Watters, and judgment was thereupon entered in favor of Doss against Watters for $71.93. After this payment the fi. fa. of Wells against Watters was levied for “the purpose only of prosecuting the levy for the attorneys’ fees in the case,” and the court instructed the jury to find for Wells, for the use of his attorneys, the sum of $20. Watters’ motion for a new trial was overruled, and he excepts. [779] Watters, having paid the principal and interest on the Doss judgment, claimed that it satisfied the principal and interest of the Wells judgment. In other words, he insisted that there had been no settlement by him of the fi. fa. with Wells, but that the payment of the judgment in favor of the garnishee by him fully satisfied the judgment in favor of Wells against him; or, to. express it differently, he claimed that he had simply set off one judgment against the other, and that this he had a right to do. He also insisted that as the judgment in favor of the garnishee was entered against him by direction of Wells’ attorneys, the attorneys were -estopped from enforcing the judgment in favor of Wells, against him for their fee. Section 2814 of the Civil Code of 1895 prohibits the settlement of a fi. fa. or judgment by the defendant with the plaintiff in fi. fa. so as to defeat the fees of the attorneys for the plaintiff; but under the facts of this case, 'it seems to us that Watters, defendant in fi. fa. in the suit of Wells, did not settle the fi. fa. with Wells. Watters owed Wells, and AYells owed Doss. Watters, by consent of Wells’ attorneys, paid the debt which AYells owed to Doss, garnishing creditor. Under the facts of this case Watters, the defendant in fi. fa., was compelled at his peril to settle the garnishment debt, and the payment by him of the judgment for that debt was a complete satisfaction of the judgment in favor of AW ells, the original plaintiff in fi. fa. AAre think the case is controlled by the principle announced in Langston v. Roby, 68 Ga. 406, that “while parties can not settle- a judgment so as to avoid the lien of the plaintiff’s attorney for his fee, yet the .right of setting off one judgment against another is conferred by express statute, and may be exercised although the practical result may be an -extinguishment of such judgment in whole or in part, and thereby the attorney may lose the power of enforcing it for his fee.” See also Smith v. Evans, 110 Ga. 536 (35 S. E. 633). We think also that the attorney for Wells was estopped from prosecuting the fi. fa. against AYatters for his fee, because he had himself directed the, justice to enter judgment in favor of Doss, the garnishing creditor, against AAratters for the full amount due from Watters to Wells. This was in effect a payment by Watters of the Wells fi. fa. against him under the direction of Wells’ attorney. The judgment in favor of Wells against Watters having thus been paid by AYatters, in the payment by him of Doss’s claim [780] against Wells, the fi. fa. issued thereon could not he prosecuted for any purpose. Judgment reversed.