Opinion
43848, 43849.
SUBMITTED SEPTEMBER 5, 1968.
DECIDED MARCH 5, 1969.
Complaint. Bartow Superior Court. Before Judge Paschall, Emeritus.
James E. Greene, for appellant.
John D. Edge, for appellee.
1. The complaint stated a claim for relief.
2. It does not appear that defendant was harmed by the court's action in reopening the evidence in this non-jury case after submission and while holding the matter for decision.
3. Under the Civil Practice Act a plaintiff may sue on one theory and recover on another.
SUBMITTED SEPTEMBER 5, 1968 — DECIDED MARCH 5, 1969.
Mary McIntyre brought this suit against William Greene to recover usury and forfeited interest. The amended petition showed that plaintiff sought defendant's services as an attorney to stop the impending sale of her home under a security deed held by C. C. Pittman. Defendant paid off the indebtedness with his own funds and took a new deed to secure debt from plaintiff. Plaintiff thereafter paid off the indebtedness to defendant, which she alleged was infected with usury, with the proceeds of a loan from Bartow Federal Savings Loan Association. Defendant contended in his answer that the indebtedness secured by the conveyance to him, so far as it exceeded the sum which he paid Pittman, represented charges for his professional services as an attorney and expenses incidental to the transaction.
The case was tried on March 19, 1967, before the court without a jury. This trial was not reported. After submission of the cause plaintiff's counsel apparently made a verbal request that the case be re-opened so that the evidence could be reported. Another hearing was set for May 8, 1967, evidence was presented and the trial reported. On May 9, the court entered judgment for plaintiff, reciting in the judgment that the court found against the plaintiff on the issue of usury, but that plaintiff was entitled to a refund of $300 as the attorney's fee charged by defendant was excessive in view of the small amount in controversy with Pittman and in view of plaintiff's delicate health and unemployability and her lack of employment over a period of years.
1. The petition was sufficient to state a claim for relief under the Civil Practice Act (Ga. L. 1966, pp. 609, 619; Code Ann. § 81A-108).
2. In one ground of enumerated error, defendant contends the court erred in re-opening the case for the purpose of having the evidence reported.
Ordinarily, it is within the sound discretion of the court, in a case tried by the court sitting without a jury, to re-open the case for further testimony while holding the matter for decision. See Electric R. Co. v. Savannah, Fla. W. R. Co., 87 Ga. 261 (2) ( 13 S.E. 512); Hartford c. Co. v. Garland, 81 Ga. App. 667, 670 ( 59 S.E.2d 560); 89 CJS 375-381, Trial, § 591. However, Section 10 (d), (g) of the Appellate Practice Act (Ga. L. 1965, pp. 18, 24; Code Ann. § 6-805 (d), (g)) prescribes the correct procedure for preparing a transcript of the proceedings where a trial is not reported. The parties should have prepared a transcript according to that procedure. Thus we do not think it was within the court's discretion to re-open the case, without notice and hearing on the application, merely because the first hearing had not been reported. However, in order to show that he was harmed, it would be necessary for defendant to demonstrate that different or additional evidence was presented on the second hearing which could have changed the result. Defendant-appellant has failed to carry this burden by failing to have prepared a transcript of the first hearing. We are unable to determine whether defendant was harmed. We think he was not, as the trial judge stated at the conclusion of the second hearing that he had not changed his mind in the case.
3. This court cannot consider questions with respect to proceedings on a trial which are merely related in a party's brief but are not incorporated in a properly authenticated transcript as required by the Appellate Practice Act. Palmer v. Stevens, 115 Ga. App. 398 (8) ( 154 S.E.2d 803); Cooper v. Brock, 117 Ga. App. 501 ( 161 S.E.2d 75). As we do not have before us a transcript embracing all the evidence presented at the two hearings we cannot consider the evidence in passing upon general grounds in either the main appeal or the cross appeal. We must assume the court's decision was based upon sufficient evidence. Daniels v. Sanders, 114 Ga. App. 495, 497 ( 151 S.E.2d 820).
Under the Civil Practice Act a plaintiff may sue on one theory and recover on another. Hirsch's v. Adams, 117 Ga. App. 847, 848 ( 162 S.E.2d 243). Thus the fact that the complaint was brought for usury did not preclude a recovery as for money had and received assuming the evidence supported the latter theory.
While money voluntarily paid may not ordinarily be recovered, this rule is not without exception. See Code § 20-1007; Lowe v. Presley, 86 Ga. App. 328, 332 ( 71 S.E.2d 730). The law making the relationship of attorney and client confidential is a salutary one and it is the duty of the courts to enforce it strictly. Lewis v. Foy, 189 Ga. 596, 600 ( 6 S.E.2d 788). It seems clear from the nature of that relationship that a client may recover from an attorney where, as the trial court found in this case, the proprieties of the relationship demand the return of a portion of the fee paid. 7 CJS 1094, Attorney and Client, § 192. See generally Rule 3-112 of the State Bar of Georgia, 219 Ga. 889; Annot. 70 ALR2d 962.
Judgment affirmed on the main appeal and on the cross appeal. Hall and Quillian, JJ., concur.