
    Lumpkin v. Louisville & Nashville Railroad Company.
    April 12, 1911.
    Attorney’s lien. Before Judge Lewis. Greene superior court. January 25, 1910.
    Th.e plaintiff filed a suit on September 13, 1907, returnable to the February term of the superior court of Greene county, which convened on February 10, 1908. The petition, with process attached, was served upon the defendant on January 25, 1908, which was in due time before the appearance term. On September 19, 1907, between the dates of the filing and of service of the petition, the parties consummated a settlement between themselves, without the knowledge or consent of the attorneys for plaintiff. The plaintiff’s attorneys amended the petition so as to proceed in the name of the plaintiff for their benefit for the establishment of a lien, under the Civil Code of 1895, § 2814, par. 2 (Civil Code (1910), § 3364), and upon that to recover from the defendant fees alleged to be due the attorneys by the plaintiff in and about the prosecution of the suit. The court sustained a demurrer, the effect of which was to hold that under the allegations of the petition no lien existed in favor of the attorne3rs for the plaintiff, and dismissed the action.
   Atkinson, J.

1. Under the ruling in the case of Florida Central & Peninsular R. Co. v. Ragan, 104 Ga. 353 (30 S. E. 745), where suit was brought against a railroad company for damages arising from a personal injury, if, before service of process was perfected upon the defendant, and without any actual notice of the filing of the petition, the company settled with the plaintiff on account of such damages, the lien of the attorneys of the plaintiff for their fees did not arise, and they could not prosecute the action for the purpose of recovering the amount of such fees due to them.

(a) This court has been requested to review the decision above cited; but the members of the court are not unanimous in the opinion that it should be overruled, and it must therefore stand as authority.

2. The mere allegation of notice to a physician, employed by a railroad company to .treat injured persons, of the filing of the suit, would not alone suffice to show notice to the company, it not appearing that dealing with litigation, or. settlements, or the receipt of such notice, was a matter within the scope of his -employment.

3. The special allegations of the petition, by which it was sought to charge that the physician was the agent of the railroad company, whose knowledge would affect the company with notice, were not sufficient for that purpose.

4. There was no error in dismissing the case on demurrer.

5. The case being prosecuted in the name of the plaintiff to enforce the lien of her attorneys for their fees, and having been dismissed on demurrer, and a bill of exceptions having been sued out in the name of the plaintiff and a pauper affidavit made by the plaintiff, the writ of error will not be dismissed upon the ground that the costs of court had not been paid, or that no pauper’s affidavit was filed by real parties at interest. Judgment affirmed.

All the Justices eoneur.

F. B. Shipp and Joseph P. Brown, for plaintiff.

Joseph B. & Bryan Gumming and Parle £ Parle, for defendant.  