Bird v. General Discount Corporation, 21 S.E.2d 651

21 S.E.2d 651 | Ga. | 1942

1. Where the court after a hearing entered an interlocutory order containing "findings of fact and conclusions of law" to the effect that the defendant had not made out a case for the appointment of a receiver as prayed by it in its cross-action, and stating that the court would proceed no further with the appointment of a receiver, and where there was nothing in the record or order to indicate that the court intended to withhold judgment on the defendant's prayer for the appointment of a receiver, or to consider it further, the interlocutory order amounted to a denial of the defendant's prayer, and as such was subject to direct exceptions taken by the defendant. Carnes v. Carnes, 138 Ga. 1 (5) (74 S.E. 785); Friedlander v. Friedlander, 175 Ga. 477 (3) (165 S.E. 426).

2. A receiver should not be appointed to take possession of property unless it is clearly made to appear that a receiver is required in order to protect the rights of those interested in the property. Code, §§ 55-301, 55-303, 55-305. In the instant case, even if usury was involved as contended by the defendant, the evidence failed to disclose facts showing that the appointment of a receiver was necessary in order to protect the rights of the defendant pending the trial of that issue. The defendant's prayer for a receiver was properly denied.

3. Where the judge, at the conclusion of an interlocutory hearing on a petition for injunction and receiver, orally announced certain findings of fact and conclusions of law, favorably to the plaintiff, and indicated his intention to appoint a receiver, but in his formal order did not appoint a receiver or grant any of the other relief sought by the plaintiff, due to the fact (as stated therein) that the defendant had since the interlocutory hearing filed voluntary bankruptcy proceedings, and merely stated the "findings of fact and conclusions of law" for "the purpose of placing [them] upon the record," exceptions thereto by the defendant do not present any question for decision by this court. It is the judgment or decision of the court, and not opinions or reasons, that must be excepted to. Farrow v. State, 48 Ga. 30 (3); Hitchcock v. Hamilton, 184 Ga. 700 (192 S.E. 726). Findings of fact and conclusions of law on an interlocutory hearing, upon which the court bases no decision of the questions to be determined on such a hearing, do not constitute any adjudication, final or otherwise, upon the rights of the parties. Wallace v. Johnson, 88 Ga. 68 (13 S.E. 836). Since the order excepted to did not grant the relief prayed for by the plaintiff, and the findings and conclusions of the court did not constitute an adjudication upon the rights of the parties to which exception could be taken, exceptions thereto by the defendant do not require any ruling by this court.

Judgment affirmed. All the Justicesconcur.

No. 14225. JULY 15, 1942. The General Discount Corporation sued the Williams Refrigerator Corporation and its general manager and executive officer, C. O. Duncan, alleging, that the plaintiff is engaged in the business of purchasing accounts receivable, notes, contracts, and all forms of installment paper; that the defendant refrigerator corporation is engaged in the business of manufacturing all types of refrigeration equipment, most of which is sold in the retail market on an installment basis, the refrigerator corporation receiving a down payment and a purchase-money note payable installments and secured by a retention-of-title contract covering the equipment sold; that on June 14, 1939, the plaintiff and the refrigerator corporation entered into a contract by the terms of which the plaintiff agreed to purchase such of the installment contracts as were acceptable to it, the refrigerator corporation guaranteeing the payment of the same; that of the large number of such contracts purchased by the plaintiff some became in default, and the defendant has refused to pay the same; that the defendant has repossessed a large amount of equipment and converted the proceeds thereof to its own use; that on demand the defendant gave to the plaintiff trust receipts for some of the equipment repossessed, but thereafter illegally sold property covered by these trust receipts and converted the proceeds thereof; that the defendant corporation is liquidating its business, and, for the purpose of hindering, delaying, and defrauding its creditors, is conveying all of its assets to the defendant Duncan or to some corporation formed for this purpose; that the defendant corporation is insolvent; and that the plaintiff will be irreparably damaged unless a receiver is appointed to take charge of and preserve the assets of the defendant corporation. The petition contained a detailed statement of many of the transactions referred to therein, but for the purposes of the present decision a general statement is deemed sufficient. The plaintiff prayed, among other things, that the defendants be enjoined from transferring or disposing of the assets of the defendant corporation and the equipment held in trust by it for the plaintiff; and for appointment of a receiver. On this petition the court granted a temporary restraining order as prayed.

The defendant corporation filed an answer in which it alleged that the contract of June 14, 1939, between it and the plaintiff, was not one for the purchase and sale of installment contracts, but was a contract for the mere loan of money to it by the plaintiff at the usurious rate of interest of nine per cent. per annum, the installment contracts having been transferred merely as collateral security for the loan; and that the defendant had tendered to the plaintiff the amount which the defendant owed after deducting the large amount of usury which the plaintiff had exacted from the defendant. The defendant also alleged that the plaintiff was attempting to liquidate its business and go into another line of business, and prayed that the court appoint a receiver to take charge of about $28,000 worth of installment contracts which the plaintiff held as security for loans to the defendant.

At interlocutory hearing the parties introduced voluminous evidence in support of the contentions in the pleadings. At the conclusion of the hearing, the judge announced that it was his opinion that the plaintiff had made out a prima facie case, and that the defendant had failed to show that the contract was usurious as contended, and he instructed counsel to prepare an order in accordance with his views as thus expressed, and, if possible, to agree among themselves as to a suitable person to be named as receiver. On the same date, April 8, 1942, the defendant corporation filed in the United States district court a voluntary-bankruptcy petition. On the following day, the judge entered an order in which, after reciting the findings and conclusions of fact and law which he had announced the previous day, it was stated that the defendant had filed its bankruptcy petition, and that an officer of the Federal court had or would take charge of that defendant's property. The order then stated: "Accordingly, this court will proceed no further with the appointment of a receiver as prayed, and enters this order for the purpose of placing upon the record the court's finding of fact and conclusions of law as above set forth." F. M. Bird, trustee in bankruptcy for Williams Refrigerator Corporation, in accordance with permission granted to him by the bankruptcy court, asked to be allowed to intervene in this suit as a defendant in place of the Williams Refrigerator Corporation. On April 29, 1942, an order was entered making the trustee a party defendant. The trustee thereupon excepted to the order of April 9, on the ground that it was contrary to law, stating that the "judge should have denied the relief prayed for by the plaintiff, and should have granted the relief prayed for by this defendant in its answer and cross-action."