(after stating the facts). It is insisted by counsel for appellee that inasmuch as no motion for a new trial was filed that no issues of fact will be inquired' into by this court, and further insisted that there are no errors appearing upon the face of the record and that therefore the judgment should be affirmed.
(1) The statute authorizing a client to proceed in a summary way on motion before the circuit court to procurp judgment against his attorney for money which the attorney has received for him, was not intended as a substitute for the ordinary action for money had and received. Kirby’s Digest, Secs. 449, 4480.
The proceedings against an attorney under these statutes are not in the nature of a common law action or an ordinary civil action under our code of procedure, but they are special statutory proceedings and are penal in character and must therefore be strictly construed. Milor v. Farrelly, 25 Ark. 353; Cooley v. Lovewell, 95 Ark. 567.
(2) The statutes were intended to cover those cases only where the attorney has received or collected money for his client and makes no bona fide defense either in a written answer, duly verified, or by proof, in the absence of written pleadings, showing that the money is held by him upon a bona fide claim that he is entitled to the same for his fee, or that he is entitled to hold the same in payment or as a lien for legal services rendered his client, or some other claim of set-off.
(3) The statute provides that the motion shall be heard and determined without written pleadings and judgment given according to law and rules of equity. Kirby’s Digest, § 4480 et seg. But this does not mean that written pleadings may not be filed, and the court can not proceed to hear the matter simply upon the notice given upon oral motion for a summary judgment if the attorney appears and files an answer, duly verified, which shows upon its face that he has a meritorious ground of defense. This is true for the reason that the statute authorizing the summary judgment authorizes the court, upon entering a summary judgment, to further deal with the attorney as the court may deem just under the provisions of the act. The statute seems to contemplate that if the attorney, upon notice, confesses the facts set up in the motion and makes no bona fide defense thereto or denial thereof that the court, on rendering a summary judgment, may treat such facts as the basis of formal charges for suspending an attorney from the practice and may order proceedings to be instituted against him for that purpose. But if such proceedings to disbar were instituted the attorney could defend against them and set up any bona fide defense that he might have and demand a jury trial on the issues of fact raised by him. See Wernimont v. State ex rel. Little Rock Bar Association, 101 Ark. 210; Nichols v. Little, 112 Ark. 233.
In Nichols v. Little, supra, we said: “The practice in such cases is defined in the case of Wernimont v. State ex rel. Little Rock Bar Association, 101 Ark. 210, where it was said: £The proceedings for the disbarment of attorneys are not formal. The prosecution thereof may be conducted in the name of the State by its prosecuting officer, or the court may require a member of the bar to present and prosecute the charges. After due and proper notice has been given to the defendant of the charges preferred against him, the court has the power to proceed with the trial of the matter according to the rules of practice adopted by it, not contrary to any procedure prescribed by statute. ’ In that case it was held that the attorney was entitled to a trial by a jury, although the judgment in that case was affirmed, notwithstanding a trial by jury had been refused; but this was so because the court found that under the undisputed evidence in the case a verdict should have there been directed, even though the trial had been before a jury. But in the present case the evidence is not undisputed, and appellant would be entitled to a trial by jury. He cannot be said to have waived his right because he was not entitled to demand a jury upon the hearing of the motion for the summary judgment.”
In Nichols v. Little, supra, we affirmed the judgment rendered by the court on the motion for summary judgment notwithstanding the attorney filed a response thereto which presented an issue of fact that entitled him to a trial by jury, but in that case no objection was urged _to the jurisdiction of the court to render summary judgment. The parties submitted to the court’s jurisdiction and proceeded to a trial of the issue of fact on the motion for a summary judgment and the response thereto and the evidence adduced on that issue, and on appeal no objection was raised to the jurisdiction of the court to hear the cause and to render a judgment on the motion for summary judgment and the response thereto. Our attention was not called to this feature. ¥e did not discuss or decide the question as to whether or not the court has jurisdiction to render summary judgment on a motion under the statute in a case where the attorney sets up in his answer, duly verified, facts which, if true, would constitute a complete defense to the cause of action set up in the motion. In other words, the question we now have under consideraiton was not raised by the parties in that case. The attorney in that case, as before stated, did not question the jurisdiction of the court to render judgment on the motion and answer, but only challenged the jurisdiction of the court to suspend him from the practice of law without proceeding according to the requirements of the statute in such cases which entitled him to a trial by a jury on the issue as to disbarment.
Now, in Wernimont v. State ex rel. Little Rock Bar Association, supra, it is held that an attorney is entitled to a trial by jury on the issue of disbarment where the court, in rendering the summary judgment under the statute, orders disbarment proceedings to be instituted against him. The statute authorizing summary judgments on motion of the client against his attorney also prescribes that when the court shall render summary judgment against the attorney for the amount of money received by him that the attorney shall be further dealt with as the court may deem just, etc. And in Nichols v. Little, supra, it was held that an attorney was not entitled to demand a jury upon the hearing of a motion for a summary judgment.
It follows as a necessary corollary to these holdings that the court has no jurisdiction to render a summary judgment on motion against an attorney in any case where the attorney in his duly verified response to the notice and motion, sets np issues of fact which are only proper for a jury to determine and which, if found to be true, would constitute a meritorious and perfeqt defense to the cause of action alleged in the motion.
Attorneys are not entitled to demand a trial by jury upon the hearing of motions for summary judgments for the reason that the court has no jurisdiction to entertain such motions in causes where the attorney, in his verified response, raises controverted issues of fact on the merits of such motion.
In Windsor v. Brown, 15 R. I. 182, the court said: “When an officer of the court withholds funds unconscionably, or to an amount clearly above any legal claim, the court, not undertaking to settle the exact sum that may be due but to enforce good faith and fair dealing, will require its officer to pay so much as is beyond dispute.”
And in Peirce v. Palmer, 31 R. I. 432, 444, after quoting the above, the court says: “In no case does it appear that the court has exercised this jurisdiction except as to matters about which there was no reasonable dispute. * * * If it is beyond reasonable question that there has been misconduct on the part of the attorney in retaining the money the court will promptly make an order for its payment. But, alike in all cases, for the client to be given this extraordinary relief it must be clear that there has been an injustice done to him. In all cases the client has relief in the ordinary tribunals for the determination of legal controversies, and when his right to have a summary order can be reasonably questioned he must be referred to these ordinary remedies, whatever be the nature of the controversy.”
-In 23 Cyc. p. 769, it is said: “But such a judgment can not be given where the pleadings of defendant set up a substantial and issuable defense.” See also 6 Corp. Juris, Sec. 264, p. 711.
Although there is some difference of opinion among the authorities, we hold to the view above expressed, that the court has no jurisdiction to render summary judgment on motion where the verified answer of the attorney sets np issuable facts which, if true, would constitute a good defense to the motion. . The answer herein stated facts, which if true, were sufficient to constitute a defense to the motion for a summary judgment. In all such cases the court should deny the motion and treat the proceeding as an ordinary action at law and transfer •the same to the proper docket and allow it to take its regular course as such proceeding.
(4) It follows that the error complained of appeared on the face of the record proper and therefore no motion for a new trial was necessary.
For the error indicated the judgment is reversed and the cause is remanded for further proceedings according to law and not inconsistent with this opinion.