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Lawskills.com Georgia Caselaw
BURCH v. WILLIAMS, Executor, et al.
25519.
Equitable petition. Lowndes Superior Court. Before Judge Franklin.
MOBLEY, Presiding Justice.
In a controversy between the attorney and the representative of an estate as to the fee to be paid the attorney for representing the estate, either party may petition the ordinary to have the issue determined. Where no appeal is taken from the judgment of the court of ordinary fixing the fee, an equitable action to have the judgment of the ordinary declared void will not lie, as equity will not entertain jurisdiction where there is an adequate and complete remedy at law by appeal.
This is an appeal from a judgment of the Superior Court of Lowndes County dismissing the petition of the appellant for want of jurisdiction on the ground of an adequate remedy at law, and holding further that proceedings in the court of ordinary, which the appellant sought to have declared void, were authorized under Code 113-1522, as amended, and that there was no appeal from the judgment of the court of ordinary fixing the fee of the attorney appellant for services rendered the executor of an estate. These holdings of the court were enumerated as error.
The question arises as to whether the contract between the appellant and the executor is enforceable at law; and whether the court of ordinary has jurisdiction where, as here, a controversy as to the fee arises between the attorney and the executor, to determine the issue and fix the fee upon petition filed by the executor.
In Kimball v. Casey, 169 Ga. 631 (3) (151 SE 372), it was held that if an administrator by contract employed an attorney to represent the estate in a matter concerning the estate, and such contract was made with due care, the contract would be binding, with or without the order of the court of ordinary.
In Cromer v. Chambers, 104 Ga. App. 196 (121 SE2d 397), the Court of Appeals held that the court of ordinary was without jurisdiction to assess and award attorney's fees to an attorney representing an estate on a petition brought by the attorney for that purpose in the court of ordinary. (Certiorari denied.) Code 113-1522 at that time provided: "An administrator is authorized to provide for the estate competent legal counsel, according to the needs of the estate he represents." Code 113-1522 was thereafter amended by adding the following thereto: "Either the administrator or the attorney employed may, by petition to the ordinary and duly served on the other, obtain a judgment fixing the attorney's fees and expenses. Such judgment shall be appealable as in other cases." Ga. L. 1964, p. 212.
We are of the opinion that while a contract between an attorney and the executor as to payment of attorney's fees for representing the estate is enforceable at law, where a controversy arises between the attorney and the representative of the estate as to the fee, either party may by petition to the ordinary have the issue determined by the ordinary. The judgment of the court of ordinary is appealable under Code 113-1522, as amended.
The failure of the appellant to appeal from this judgment of the court of ordinary made that judgment the law of the case. The appellant had an adequate remedy at law by appeal, which he failed to exercise. Thus his equitable motion to declare the judgment void will not lie, as equity will not entertain jurisdiction where there is an adequate and complete remedy at law. Code 37-102, 37-120; Burress v. Montgomery, 148 Ga. 548 (2) (97 SE 538). "The rule is well settled that, barring extraordinary circumstances, the exhaustion of the statutory remedy of appeal is a prerequisite to relief in equity. Carter v. Board of Ed. of Richmond County, 221 Ga. 775, 777 (147 SE2d 315); Bedingfield v. Parkerson, 212 Ga. 654, 660 (94 SE2d 714)." Boatright v. Brown, 222 Ga. 497 (2) (150 SE2d 680).
Judgment affirmed. All the Justices concur.
J. Lundie Smith, W. G. Elliott, for appellees.
Burch & Boswell, John S. Boswell, Sr., for appellant.
ARGUED DECEMBER 8, 1969 -- DECIDED JANUARY 8, 1970.
Friday May 22 16:34 EDT


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