O.C.G.A. § 15-13-3 (2019)

Annotations

Law reviews. - For annual survey on real property, see 65 Mercer L. Rev. 233 (2013).

JUDICIAL DECISIONS Section is penal in nature and to be strictly construed. - While the right to rule an attorney for money alleged to be in the attorney’s possession is penal in nature and must be strictly construed, the proceeding is a civil action wherein the preponderance of evidence rule applies. Commins v. Ross, 44 Ga. App. 182, 160 S.E. 679 (1931); Blanch v. Roberson, 69 Ga. App. 423, 25 S.E.2d 720 (1943); Aiken v. Richardson, 210 Ga. 728, 82 S.E.2d 646, appeal dismissed, 348 U.S. 866, 75 S. Ct. 105, 99 L. Ed. 682 (1954). Suing out money rule against levying officer is, in effect, bringing a civil action against the officer. Commins v. Ross, 44 Ga. App. 182, 160 S.E. 679 (1931). Cases of setoff, as with money rules, are not equity cases. - By parity of reasoning regarding those cases of statutory money rule against levying officers, which are not equity cases, and those of setoff allowed by statute, the pursuit of the remedy allowed by former Code 1933, § 108-501 does not make an ‘‘equity case’’ of which the Supreme Court has exclusive jurisdiction. Robinson v. Lindsey, 184 Ga. 684, 192 S.E. 910 (1937). Supreme Court lacks equity jurisdiction without equity allegation. - If petition contains no allegations showing any right in plaintiffs to equitable relief, but the only judgment sought is one, requiring officers to pay over to the county treasurer certain sums alleged to be in their hands and to which the county is entitled, it is not a case of which the Supreme Court has equity jurisdiction. Rucker v. Stark, 209 Ga. 496, 74 S.E.2d 74, transferred to Banks County v. Stark, 88 Ga. App. 368, 77 S.E.2d 33 (1953). City court clerk liable for failure to account for money. - If act creating city court makes the clerk thereof amenable to all the duties and liabilities attached to the office of clerk of the superior court, the clerk may be ruled under former Code 1933, § 24-2722 (see now O.C.G.A. § 15-6-83) upon the clerk’s failure to account faithfully for money coming into the clerk’s hands, and also under former Code 1933, § 24-201 (see now O.C.G.A.

§ 15-13-1). Ivester v. Mozeley, 89 Ga. App. 578, 80 S.E.2d 197 (1954). Attorneys are liable to same rule as sheriffs. - If attorneys retain in their hands money from their clients after the money has been demanded, the attorneys are liable as to rule as sheriffs are. Commins v. Ross, 44 Ga. App. 182, 160 S.E. 679 (1931). Penalty collectible from attorney by action other than rule. - Right of the client to the 20 percent penalty for withholding money collected after written demand does not necessarily depend on the client proceeding against the attorney under the money rule summary proceeding. Nations v. Winter, 165 Ga. App. 890, 303 S.E.2d 64 (1983). Right to rule attorney limited to client. - Right to rule an attorney for the payment of money depends upon the existence of the relation of attorney and client, and is limited to the client. Breen v. Phillips, 169 Ga. 13, 149 S.E. 565 (1929); Blanch v. Roberson, 69 Ga. App. 423, 25 S.E.2d 720 (1943). Rule instituted by a client against an attorney at law is amendable. Aiken v. Richardson, 80 Ga. App. 591, 56 S.E.2d 782 (1949). Statute makes 20 percent the legal rate of interest on a sum collected by an attorney and not paid over from the date of the demand by the client; therefore, if the verdict for the amount is ‘‘with legal interest,’’ a judgment of 20 percent is right. Gray v. Conyers, 70 Ga. 349 (1883). When a trial court found a tax commissioner improperly refused to pay a tax execution holder’s executions, but did not find the commissioner had good cause for the refusal and did not award the holder 20 percent interest, pursuant to O.C.G.A. § 15-13-3(a), the matter had to be remanded for a determination of the good cause issue and to consider the holder’s entitlement to one percent interest per month pursuant to O.C.G.A. §§ 48-2-40 and 48-3-20. Scott v. Vesta Holdings I, LLC, 275 Ga. App. 196, 620 S.E.2d 447 (2005). No demand necessary if attorney dead unless 20 percent interest

sought. - No demand is necessary to the commencement of an action by a client against an attorney who has collected money for the client and failed to pay the money over, or against the attorney’s legal representative if the attorney is dead; if it is sought to recover 20 percent interest for withholding payment after written demand, such demand would then be necessary. Shepherd, Hooper & Co. v. Crawford, 71 Ga. 458 (1883). Attorney not subject to rule by receiver for payment of balance of fee. - If plaintiff dismissed plaintiff ’s receivership proceeding, and defendant gave a check for the receiver’s fee, but plaintiff ’s attorney, without authority from the defendant or the receiver, struck the receiver’s name and had the check paid to the attorney, kept a portion for the attorney’s fee and paid the receiver the receiver’s portion, the attorney was not subject to rule by the receiver. Breen v. Phillips, 169 Ga. 13, 149 S.E. 565 (1929). Defendant cannot enforce claim by rule against plaintiff ’s attorney. - If, as a result of an action instituted by an attorney for a client, money has come into the hands of the attorney, for the defendant in that action who claims title to the money but who is not the client of the attorney, cannot enforce the client’s claim by rule against the attorney. Blanch v. Roberson, 69 Ga. App. 423, 25 S.E.2d 720 (1943). Rule not granted when debt denied. - Otherwise summary remedy of a rule nisi is not available in an action to collect funds allegedly withheld by an attorney if the attorney answers the complaint in writing and effectively denies the complaint’s allegations. West v. Haupt, 163 Ga. App. 907, 296 S.E.2d 723 (1982). Claimant did not have right to excess funds generated by tax sale. - Claimant’s petition for a money rule judgment was properly dismissed as the claimant did not obtain an interest in the excess funds generated at a tax sale through a quitclaim deed from the delinquent taxpayer; the taxpayer did not have an inter-

est in the real property to convey and while the quitclaim deed provided for the transfer of any rights created under the tax deed, the rights created under a tax deed ran only to the purchaser of the property at the tax sale. Ga. Lien Servs. v. Barrett, 272 Ga. App. 656, 613 S.E.2d 180 (2005). Trial court did not err in granting a tax commissioner summary judgment in a lienholder’s action under O.C.G.A. § 15-13-3 to recover excess funds from a tax sale because at the time of the tax sale, at the time the tax commissioner notified the record owner of the property and record lienholders of the excess tax sale funds, and at the time the tax commissioner paid the excess tax sale funds to the record owner of the property, the lienholder had no recorded lien or interest in the property; after the tax commissioner fulfilled the obligation under O.C.G.A. § 48-4-5(a) to give notice to the record property owner and lienholders, the property owner submitted the only claim to the tax commissioner for the excess tax sale funds, and the lienholder failed to show that more was required of the tax commissioner before the funds were disbursed. Brina Bay Holdings, LLC v. Echols, 314 Ga. App. 242, 723 S.E.2d 533 (2012). Trial court did not err in granting a surety summary judgment in a lienholder’s action under O.C.G.A. § 15-13-3 to recover excess funds from a tax sale because as the surety on the bond for the tax commissioner, the surety had no liability when the tax commissioner had none, O.C.G.A. § 10-7-2, and the tax commissioner was not liable. Brina Bay Holdings, LLC v. Echols, 314 Ga. App. 242, 723 S.E.2d 533 (2012). Cited in Barge v. Ownby, 170 Ga. 440, 153 S.E. 49 (1930); Alsabrook v. Prudential Ins. Co., 174 Ga. 637, 163 S.E. 706 (1932); Atlanta Coach Co. v. Simmons, 184 Ga. 1, 190 S.E. 610 (1937); Aiken v. Richardson, 85 Ga. App. 180, 68 S.E.2d 228 (1951); Aiken v. Richardson, 209 Ga. 837, 76 S.E.2d 393 (1953); Hasty v. Grimes, 96 Ga. App. 145, 99 S.E.2d 450 (1957).

OPINIONS OF THE ATTORNEY GENERAL Constable may be ruled for contempt in superior or magistrate courts. - Constable failing to pay over any money coming into constable’s posses-

sion may be ruled for contempt either in superior court or in the justice of the peace (now magistrate) court. 1952-53 Op. Att’y Gen. p. 33.

RESEARCH REFERENCES ALR. - Right of attorney to jury trial where he is charged with failure to turn over money or property to client, 22 ALR 1501. Personal liability of attorney to one other than his client for damages resulting from erroneous judicial action, 87 ALR 174.

Exception as regards payments to officers of court to rule preventing recovery back of payments made under mistake of law, 111 ALR 637. Power of court to order restitution to wronged client in disciplinary proceeding against attorney, 75 ALR3d 307.