(dissenting). The effect of the majority opinion in this case is to hold that in a summary proceeding against an attorney instituted by his client to require payment of money received in his professional capacity, if the attorney files a response setting up an issue of fact as a defense, the jurisdiction of the court to proceed further is defeated. In other words, that an attorney charged with wrongfully withholding money of his client, however reprehensible his conduct may be, can defeat the summary proceeding provided by statute merely by interposing a denial. I do not believe that the opinion is supported by a single authority, either among the text writers or in the decisions of other courts. This view of the statute completely nullifies the remedy which the law-makers have undertaken to give, for it is easy enough for an attorney who is so recreant to his trust as to fail or refuse to pay over money collected, to interpose a specious defense for the purpose of defeating the summary statutory remedy. The New York Court of Appeals, speaking on this subject in the case of Bowling Green Savings Bank v. Todd, 52 N. Y. 489, said: “The law is not guilty of the absurdity of holding that, after a client has spent years in collecting through his attorney a lawful demand, he shall be put to spending as many more to collect it from his attorney, and, if that attorney should not pay, then try the same track, again. ’ ’
There is a chapter in the digest of our statute devoted to the subject of summary judgments, and it is provided therein that judgments and final orders may be obtained on motion in certain instances, including clients for the recovery against their attorneys, and the procedure in such cases is fully outlined in the statute. Kirby’s Digest, Chapter XCIV. Instead of the rule stated in the majority opinion being correct, the authorities are all just to the contrary, as stated by Mr. Thornton in his treatise on Attorneys at Law (Vol. 1, p. 612), where the rule is stated as follows:
“In no case should the attorney be summarily compelled to pay over money to his client if it appears that the latter is not, ex aequo et bono, entitled to it. But the mere assertion of a counter-claim is not such a dispute as will, of itself, oust the jurisdiction, because the court has the power to adjust any set-off which the attorney may have on account of fees or other charges due to him in connection with the proceeding in which he received the money in question, or as the result of any services for which he has a lien on money of his client coming into his hands. The good faith of the attorney in making such counter-claim is immaterial. ’ ’
On page 619 of the same volume the author said: ‘ ‘ The fact that the proceeding is a summary one does not deprive the attorney of any defense which 'he might have asserted in an' action at law, or in a suit in equity, instituted for the same end. Thus he may set up that the money retained by him was honestly due as compensation .for his services, * . * * or that he has a valid set-off there against.” See also Union Bldg. & Sav. Assn. v. Soderquist, 115 Ia. 695; Mundy v. Schantz, 52 N. J. Eq. 744; In Re Knapp, 85 N. Y. 285.
The subject is thoroughly discussed in a recent opinion of the Appellate Division of the Supreme Court, which was afterwards affirmed by the. Court of Appeals. Papa v. Rini, 171 N. Y. App. Div. 796, 219 N. Y. 575.
The Supreme Court of Minnesota in a recent case of this kind said: “An attorney is an officer of the court. The court has jurisdiction of him. When he collects money, belonging to his client, to whom he is under a constant obligation of the highest fidelity, he may not keep it, and from the vantage ground of a defendant in possession compel his client to pursue the slower process of the law by ordinary suit. If the attorney has- a lien, it may be summarily adjusted. If there is a contract as to fees, the court will construe it. If the attorney has a claim for fees, their amount may be determined. ’ ’ Landro v. Great Northern Railway Co., 122 Minn. 87, 141 N. W. 1103.
I think this court has made a great mistake from the standpoint of both reason and policy in placing such a construction on a statute which was intended to have a wholesome effect, but which is, I think, completely emasculated by this decision. The statute was construed in an early decision of this court in the case of Levy v. Lawson, 5 Ark. 212, which was a summary proceeding against a sheriff by a plaintiff in execution for failure of the sheriff to pay over money collected by that officer, and this court held that the summary remedy under the statute was available, notwithstanding the return of the sheriff showed that he had accounted for all the money received from the proceeds of the sale. This court held that the plaintiff in execution might maintain an action for the false return, but that the defaulting officer could not shield himself behind a false return, and thus defeat the summary remedy provided by statute. It seems to' me that that decision .is wholly at war with the construction the court now places upon the scope and effect of this statutory remedy.
Moreover we are precluded from considering the merits of the case because there was no motion for new trial filed and overruled. A new trial is required as a prerequisite to an appeal where there has been an issue of fact tried by tbe court or jury. Kirby’s Digest, sec. 6215. Tbe fact that tbe issue was tried iu a summary proceeding does not exclude tbe necessity for a- motion for new trial giving tbe trial court an opportunity to correct its own error before there can be a review in this court. But this court now bolds, as I understand, that where tbe attorney files an answer, tbe jurisdiction of tbe court is defeated and that makes tbe error appear upon tbe face of tbe record so as to bring it up for review even without a motion for new trial.
I dissent from tbe conclusion, reached by tbe majority.