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Esterlund et al. vs. Dye.

Report unnecessary.

H. CLAY FOSTER, for plaintiffs in error.

JOSEPH GANAHL; WILLIAM R. McLaws, for defendant.

WARNER, Chief Justice.

This was a bill filed by the complainant against the defendants praying for the rescission of a contract set forth therein, and also praying for an injunction, and the appointment of a receiver. A temporary order was granted until the hearing, and Sibley was appointed receiver to take charge of the property, and to hold the same until the further order of the court. On hearing the motion for the injunction, the chancellor, after considering the allegations made in the complainant's bill, and the answers of the defendants thereto, as well as the several affidavits filed in the case by the respective parties, granted the following order : "It is therefore ordered, in view of the insolvency of respondents, that they give good bond with sureties to be approved by the clerk of this court, for a reasonable rent for said lands, and the use of said property pending this litigation, and that the receiver do sell a sufficient portion of said crop now on hand, to pay to James M. Dye, the complainant, the sum of $427 00, the amount claimed to have been advanced by him, unless defendants shall give bond therefor; and in the event of said failure to give said bond, that respondents be restrained from the use of the same, and that said receiver do proceed to occupy, hold and use the same, for the mutual benefit and advantage of complainant and respondents, with the privilege of either party, to move for his removal or change before me at any time.” To the granting of which order, the defendants excepted.

There is nothing in this case to take it out of the general rulings of this court, that it will not interfere to control the discretion of the chancellor in granting the injunction on the statement of facts contained in the record, except that part of Ansley & Company vs. Glendenning. the order which directs the receiver to sell a sufficient portion of said crop now on hand, to pay James M. Dye, the complainant, $427 00, the amount claimed to have been advanced by liim. We are not aware of any law which would have authorized the chancellor to order the receiver to sell any portion of the property in controversy for the benefit of the complainant, until the final bearing of the case on its merits. We therefore direct that the order of the chancellor be modified to that extent only, upon the complainant giving bond and security for the protection of the defendants.

Let the judgment of court below be affirmed with directions as herein before indicated.

JESSE A. ANSLEY & COMPANY, plaintiffs in error, vs. WIL

LIAM GLENDENNING, administrator, defendant in error.

1. When the only occasion for going into equity is, that the judgment sought

to be enjoined is conclusive at law in another suit against the complainant, an amendment to the bill which alleges that the judgment is void for want of jurisdiction in the court that rendered it, is demurrable. Such an amendment is not in aid of the original bill, but inconsistent with, and destructive of it. A judgment void for want of jurisdiction need not be en

joined: 46 Georgia Reports, 396. 2. When the object of a bill is to attack a judgment for something that trans

pired at the term when it was rendered, evidence of what took place at a

subsequent term on the trial of an affidavit of illegality, is irrelevant. 3. A judgment against an administrator reviving a dormant judgment ren

dered against the intestate, is evidence of assets.

Equity. Judgments. Evidence. Administrators and executors. Before Judge BARTLETT. Richmond Superior Court. October Term, 1875.

Reported in the opinion.

FRANK H. MILLER, for plaintiffs in error.

H. Clay FOSTER, for defendant.

Ansley & Company vs. Glendenning.

BLECKLEY, Julge.

The main facts of this case are reported in 52 Georgia Reports, 347. There was a judgment at law against an administrator reviving a previous judgment against the intestate, which had become dormant. Subsequently, when the administrator was sued on his bond, he filed a bill to prevent the use of the judgment of revival as evidence of assets. The equity of that bill rested upon the fact that he had no assets, and was prevented from pleading plene administravit at the term when the judgment was rendered, by the ruling of the court that the juilgment would not charge him with assets.

1. At the trial of the bill the complainant amended by adding an allegation to the effect that the judgment of revival was void, because rendered when the original judgment was not dormant, the court, therefore, having no jurisdiction to revive it. The amendment was demurred to, and the court sustained the demurrer. When it is remembered that the only occasion for the bill was to resist the judgment of revival because conclusive of assets, it is plain that an amendment attacking it as void was suicidal. It cut the throat of the complainant's case. The defendants' counsel performed a friendly office when he demurred it out of court separately, instead of demurring to the whole bill, as he might have done: 28 Georgia Reports, 339. An amendment, notwithstanding the right to present distructive matter, (28 Georgia Reports, supra,) ought to be in aid of the real equity of the original case and not contradictory of it: 14 Georgia Reports, 320; 17 Ibid., 129; 16 Ibid., 527. If the judgment was in fact void, there would be no need to enjoin it as evidence: 46 Georgia Reports, 396. And if it was not void, the new facts set up as the basis of that attack upon it were immaterial, and for that reason the amendment was useless : 17 Georgia Reports, 420.

2. Evidence was admitted in behalf of the complainant, as to what transpired on the trial of an issue of illegality. The object of that evidence seems to have been to show that the

Powell & Murphy vs. Weaver.

presiding judge was of the same opinion when the illegality was tried, as he had been when the judgment of revival was rendered. But that was quite immaterial. The illegality did not go behind the judgment, and the court, on that trial, could rule nothing that would affect the judgment. The equity of the bill relates to what transpired at the term at which the judgment was rendered. Nothing that the judge said or did afterwards, can vary the rights of either party on the question of whether there is reason to modify the judgment or restrain its use as evidence of assets.

3. The charge of the judge, to the effect that the judgment of revival would not prove assets in the bands of the administrator, is contrary to the view which this court entertained when the case was here before: See 52 Georgia Reports, 347. It is that attribute of the judgment, and that alone, which lends significance to this proceeding in equity. What would be the sense or use of the complainant's bill if the judgment against him at law had no force as evidence of assets? We think the sole question for trial, (besides whether the administrator had assets,) is whether his counsel was prevented from pleading in due time by the ruling of the judge averred in the bill as taking place at the term at which the judgment was rendered.

Judgment reversed.

POWELL & MURPHY, plaintiffs in error, vs. A. M. & T. F.

WEAVER, defendants in error.

The affidavit necessary to foreclose a crop lien given to factors, must state all

the facts necessary to constitute a valid lien, and amongst them that it was created by special contract in writing.

Factors’ lien. Pleadings. Before Judge Hall. Monroe Superior Court. August Term, 1875.

Reported in the decision.

Powell & Murphy 7's. Weaver.

SPEER & STEWART; TURNER & MURPHY; J. A. COTTEN; J. D. RODDY, for plaintiffs in error.

HAMMOND & BERNER; W. D. STONE, for defendants.

WARNER, Chief Justice.

The only question made in this case is whether the affidavit of the plaintiffs to foreclose their crop lien against the defendant, was in compliance with the requirement of the statute. The court below held that it was not, and dismissed the plaintiffs’ levy; whereupon the plaintiffs excepted.

It is alleged in the affidavit of foreclosure that the defendant was indebted to the plaintiffs the sum of $98 00 for supplies furnished to make a crop for the year 1874, and, to save them from loss, gave them a lien, under section 1978 of the Code of Georgia, upon her crops of cotton, corn, etc., raised during the year 1874, which said lien was dated the 1st day of January, 1874. The point of objection was, that it was not alleged in the affidavit that the lien was in writing. One of the conditions prescribed by the 1978th section of the Code, in order to make a valid lien under that section, is, that it must be created by special contract in writing. The only pleading required in this summary remedy to foreclose a crop lien, is the affidavit of the plaintiff; consequently, that affidavit should allege all the facts which it is necessary for the plaintiff to prove at the trial, to constitute a valid lien under the statute, and if all the facts necessary to constitute a valid lien are not alleged in the affidavit, it is a good ground of demurrer thereto. Inasmuch as it is one of the conditions of a valid crop lien that it should be created by a special contract in writing, that fact should be alleged in the plaintiff's affidavit, and that not having been done in this case, the demurrer thereto was properly sustained by the court. It does not necessarily follow from the allegation in the affidavit that the defendant gave the plaintiffs a lien under the 1978th section of the Code upon her crops, etc., that the conditions prescribed

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