The two cases here considered relate to the same matters, and were argued together before this court.
1. When the cases were called for argument, the plaintiffs in error asked leave to withdraw the writs of error. To this counsel who had represented them in the lower court objected on the ground that their fees were contingent on the result of the litigation, and. that they had a right to prosecute the writs of error although their clients might desire to withdraw them. That an attorney at law has a lien upon suits for the recovery of real property or of money, and that the parties can not by a settlement among themselves defeat the attorney’s lien for fees, is established by our code and by repeated decisions of this court. Civil Code, § 2814. That this is true, not only of suits pending in a lower court, but also of cases pending here, was established by Kimbrough v. Pitts, 63 Ga. 496. It was in that case held that “ Counsel have a lien on a suit undertaken by them for fees, and may prosecute such suit in this court in the name of the client for the recovery of such fees, without regard to the objections of the client and his direction to dismiss the writ of error.” One of the present cases is a claim setting up title to certain lands, and the other a motion to set aside a decree and reinstate a suit for the recovery of these lands and of a certain amount of money. Thus one case is a suit for land, and the other, while not directly a suit for the recovery of property, seeks indirectly such recovery. Wethink therefore that,under the authorities cited, the attorneys have a right to insist that the writs of error in these cases be not withdrawn.
2. The bill of exceptions in one of these cases was sued out in the names of several persons as plaintiffs in error, and the payment of costs sought to be avoided by an affidavit in forma pauperis. This affidavit was subscribed by all of the plaintiffs in error save one. Under the ruling in Taylor v. Security Co., 95 Ga. 571, an affidavit of this character is fatally defective unless subscribed by all of the plaintiffs in error. Recognizing this, counsel for plaintiffs in error moved to amend the bill of exceptions by striking therefrom the name of the person appearing as plaintiff in error who did not sign the affidavit, stating that the name had been inserted in the bill of exceptions by mistake. On an examination of the record, however, we find that this party appears therein as a coplaintiff in the court below with the other plaintiffs in error. If
3. Walker et al. filed a motion to set aside a certain decree and to reinstate the case in which it was rendered. The Equitable Mortgage Company intervened and asked that it might be made a party, alleging that it was a party to the decree sought to be set aside and had a substantial interest in such decree. Called upon to show cause why the mortgage company should not be made a party, the movants demurred to its petition or intervention. This demurrer was overruled, and exception taken to this ruling. We are clear that there was no error in overruling the demurrer. The petition demurred to alleged enough to show that the mortgage company had a substantial interest in the case and in upholding the former decree. It was therefore eminently proper that it should be a party to the proceedings to set the decree aside.
4. According to the allegations of the motion to set aside the decree and reinstate the case on the docket, the movants were the plaintiffs in the original case, which was instituted in the superior court against their father for the purpose of recovering certain land from him. The Equitable Mortgage Co. intervened in that case and set up a claim it had against the defendant. During a term of the superior court an order was taken by consent of all the parties that the judge might hear and determine the case in vacation without the intervention of a jury. No action was taken by the judge in the succeeding vacation, and at the next term plaintiffs insisted upon a trial at that term, contending that the power given the court by the consent order had expired with the termination of the vacation intervening between the term at which the order was taken and the subsequent term. The judge decided to the contrary, holding that he had power under the order to hear and de
Section 3764 of the Civil Code provides that “All proceedings-of every kind in any court of this State, to set aside judgments or decrees of the courts, must be made within three years from the rendition of said judgments or decrees.” This would seem to be conclusive of the matter, for the language of the code is very positive and broad. It would seem to applyto all motions to set aside judgments or decrees, whether such judgments or decrees were merely voidable or were absolutely void on the face of the record, if, indeed, it is ever necessary or proper to move to set aside a judgment or decree void on its face. As to this, however, we need not decide, for we are convinced (1) that the code section does not apply to a motion to set aside an apparently valid decree, for some reason not appearing on the face of the record, and (2) that such a decree is sought to be set aside by the present proceeding. The original case was pending in the superior court and should ordinarily have been disposed of in term time, but it was entirely within the jurisdiction of the court, acting under a proper consent order taken in term, to decide the case and enter up the decree in vacation. In all cases, at law or in equity, the judge “ may, by order granted in term, render a judgment in vacation.” Civil Code, § 4325. If we
6. The other case here decided arose, as before stated, upon á claim. This claim was filed by the plaintiffs in error to the land in dispute when it was levied upon, under the former decree, as the property of the defendant. The claim was in the usual form and based upon purely legal grounds, the claimants alleging that title to the land was in them and not in the defendant. To this claim the mortgage company demurred. The plaintiffs sought to amend by setting up certain equitable grounds. The judge refused to allow the amendment, and sustained the demurrer. Exception is taken to the latter ruling. So long as the decree stands without being reversed or set aside, it is obvious that this claim, as originally filed, was not sufficient in law. To the decree the claimants, as well as the defendant and the mortgage company, were parties, and by that decree it was decided that the claimants did not have the very title which they now set up in their claim. The decree, as before shown, could not, in a collateral proceeding such as this, be treated otherwise than as binding. The question sought to be raised by the claim was res judicata, and the judge properly sustained the demurrer.
Judgment in each ease affirmed.