100 Ga. 537 | Ga. | 1897
Lead Opinion
The original petition in this case was an equitable one, and shows clearly that it was brought under section 3149(d) et seq. of the Code of 1882. Civil Code, §2719 et seq. The original plaintiffs had no equitable rights except those given under .these sections of ithe code. Without these code sections they would have had to reduce their claim judgment and have the entry of nulla bona thereon, before they could have resorted to equity. These sections give them a right to resort to the equity side of the court without judgment or lien, by showing that the corporation owes them ■debts which it failed to pay at maturity, that they demanded payment thereof and ilt was refused, and that the corporation •is insolvent. All these allegations were made in the original petition, and the court took jurisdiction and appointed a receiver under the petition thus filed. The petition being
These are the Adevre announced by this court in the case of Central Trust Co. v. Thurman, 94. Ga. 735. In the ar
Judgment affirmed,.
Concurrence Opinion
concurring specially.
Where the holder of a contract lien upon the -property of ‘an insolvent chartered railroad company seeks, through the aid of a court of equity, to have such lien set up and established, invoking in his behalf the full exercise of its-chancery powers, he thereby, relatively to all persons who-may be equitably interested, submits himself to do complete equity; and if there be charges upon the property in favor of other persons which have not in strict law a lien, but which are superior in equity to' the- claim or demand represented in the contract lien sought to be enforced, tbe court,, in adjusting the rights- of the respective parties, has the inherent power to decree a preference in favor of the former, even though the effect of such preference be to- postpone the-payment of the sum secured by the contract lien -to the satisfaction of the equitable charge; and this is true whether-the holder of the contract lien appeared in the proceeding as an original plaintiff, or was subsequently -admitted as-such by intervention, and it is likewise true whether the-proceeding be instituted under section 2716 et seq. of the-Civil Code, or under the general law authorizing the filing-of petitions in equity.
In so far as the doctrine of the ease cited as controlling-in -the present case contravenes -the principle above announced, it is, in my -opinion, unsound, and being under-review, should ibe overruled, and to that extent I dissent' from the judgment of the court; but inasmuch as a majority of the court are of the opinion that the decision in the case-cited should stand as law, I concur in the opinion that it is-controlling upon the questions made in the present case,..