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).

Rule will not lie.

- 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).

This section is penal in nature and must be strictly construed. Lancaster v. Brandt, 64 Ga. App. 429, 13 S.E.2d 516 (1941); Blanch v. Roberson, 69 Ga. App. 423, 25 S.E.2d 720 (1943).

Relationship of attorney and client must exist. Haygood v. Haden, 119 Ga. 463, 46 S.E. 625 (1904); Knight v. Rogers, 22 Ga. App. 308, 95 S.E. 997 (1918).

Attorney who receives money merely as agent of another to be remitted to third person cannot be ruled upon. Haygood v. McKenzie, 119 Ga. 466, 46 S.E. 624 (1904).

Attorney who collects money on execution subsequently purchased by petitioner cannot be ruled upon. Knight v. Rogers, 22 Ga. App. 308, 95 S.E. 997 (1918).

Right to a money rule depends on the existence of the relation of attorney and client, and is limited to the client. Blanch v. Roberson, 69 Ga. App. 423, 25 S.E.2d 720 (1943); Endicott v. Grogan, 86 Ga. App. 149, 70 S.E.2d 879 (1952); Hilton v. Bazemore, 112 Ga. App. 659, 145 S.E.2d 765 (1965).

One not client cannot enforce claim by rule against attorney.

- If, as the result of an action instituted by an attorney for the attorney's client, money has come into the hands of the attorney, the defendant in that action who claims title to the money but who is not the client of the attorney, cannot enforce defendant's claim by rule against the attorney. Blanch v. Roberson, 69 Ga. App. 423, 25 S.E.2d 720 (1943).

Rule will only lie if attorney either seeks, in opposition to the explicit terms of the attorney's agreement, knowingly and fraudulently to withhold a sum not authorized thereby, or, in withholding such funds, acts in ignorance or misapprehension of facts which the attorney's duty to the attorney's client obligates the attorney to know. Felton v. Smith, 52 Ga. App. 436, 183 S.E. 634 (1936).

Section inapplicable if ambiguous contract.

- Summary remedy to enforce the payment of money belonging to a client, wrongfully withheld by the attorney, is penal in its nature; and such a proceeding is not intended to be employed when, under all the proper pleadings, the question at issue is not the dereliction of the attorney in wrongfully withholding funds of the client, but rather is the proper construction of an ambiguous contract. Felton v. Smith, 52 Ga. App. 436, 183 S.E. 634 (1936).

Recovery of fees.

- Actual amount of money collected may be recovered by rule. Langmade & Evans v. Glenn, 57 Ga. 525 (1876).

Executed agreement that proceeds of certain note shall be kept as attorney's fees is enforceable. Whitehead v. Fitzpatrick, 58 Ga. 348 (1877).

Attorney cannot retain a part of money recovered as a fee. Conyers v. Gray, 67 Ga. 329 (1881).

Attorney cannot recover a fee if the attorney fails to pay over money belonging to the client. Gray v. Conyers, 70 Ga. 349 (1883).

Answer of attorney to rule is evidence for attorney so far as responsive to rule. Foster v. Reid, 58 Ga. 221 (1877).

When traverse filed.

- Traverse to attorney's answer to money rule may be filed at any time before rule is discharged. Lane v. Brinson, 12 Ga. App. 760, 78 S.E. 725 (1913).

Traverse is to be tried by a jury. Smith v. Bush, 58 Ga. 121 (1877); West v. Hill & Adams, 23 Ga. App. 636, 99 S.E. 155 (1919); Felton v. Smith, 52 Ga. App. 436, 183 S.E. 634 (1936).

Movant cannot file traverse after court discharges rule.

- While movant may traverse the answer at any time before the rule is discharged, yet if the court proceeds at the first term to hear and discharge the rule upon the verified and untraversed answer of the respondent, the movant cannot then file a traverse and demand as a matter of right that the rule be reinstated. Screven Oil Mill v. Guyton, 44 Ga. App. 820, 162 S.E. 920 (1932).

When rule against attorney heard.

- Rule against attorney may be heard and disposed of at term to which rule is made returnable. Screven Oil Mill v. Guyton, 44 Ga. App. 820, 162 S.E. 920 (1932).

Response to rule nisi.

- Upon rule nisi being granted on sufficient prima facie showing, attorney is required to respond in writing under oath, and it is only if such answer is not denied that the rule will be discharged or made absolute according as the court may deem the answer sufficient or not. Felton v. Smith, 52 Ga. App. 436, 183 S.E. 634 (1936).

Cannot amend petition by varying terms of unambiguous contract.

- Court did not err in refusing to allow the movant to amend the movant's petition in a proceeding since by the proposed amendment the movant sought to add to or vary by parol the terms of the unambiguous written contract under which the respondent claimed the funds in question. West v. Hill & Adams, 23 Ga. App. 636, 99 S.E. 155 (1919).

Attorney is released by payment to plaintiff's agent. Barclay v. Hopkins, 59 Ga. 562 (1877).

Cited in Crane v. Atlanta & Lowry Nat'l Bank, 40 Ga. App. 83, 149 S.E. 58 (1929); Barge v. Ownby, 170 Ga. 440, 153 S.E. 49 (1930); Wilkins v. Jordan, 50 Ga. App. 119, 177 S.E. 344 (1934); Scott v. Sala, 54 Ga. App. 805, 189 S.E. 431 (1936); MacNerland v. Barnes, 129 Ga. App. 367, 199 S.E.2d 564 (1973).

Am. Jur. 2d.

- 7 Am. Jur. 2d, Attorneys at Law, § 231.

C.J.S.

- 7A C.J.S., Attorney and Client, § 263.

ALR.

- Right of attorney to jury trial where he is charged with failure to turn over money or property to client, 22 A.L.R. 1501.

Funds in hands of his attorney as subject of attachment or garnishment by client's creditor, 35 A.L.R.3d 1094.

Attorney's failure to report promptly receipt of money or property belonging to client as ground for disciplinary action, 91 A.L.R.3d 975.

Restitution as mitigating circumstance in disciplinary action against attorney based in wrongful conduct creating liability to client, 95 A.L.R.3d 724.