138 Ga. 771 | Ga. | 1912
In this case, S. A. Brown filed his equitable petition against "William Pendley & Co., of Murray county, and L. L. Bishop and Mrs. L. L. Bishop, of Whitfield county, the latter being one of the defendants against whom substantial relief was prayed. The petition showed substantially the following facts: S. A. Brown instituted suit in Murray superior court in 1908 against Willis Pendley and William Pendley of Murray county, and L. L. Bishop of Whitfield county, as partners, on a certain promissory note for $1,000 principal debt, besides interest and attorney’s fees. At the August term, 1911, of Murray superior court, the plaintiff recovered by verdict and judgment against all of the defendants for the full amount sued for. L. L. Bishop, one of the -defendants in the above-stated case, also instituted a suit in Murray superior court, claiming that the Pendleys were due him a considerable amount of money, to which the latter replied that Bishop owed them a large sum. The trial of this case resulted in a verdict and judgment against Bishop for about $1,000. Prior to the judgment rendered in the last-named case, a receiver was appointed to take charge of the property of the firm composed of the Pendleys and L. L. Bishop, which property was sold by the receiver, who, after paying costs and counsel fees, had left a balance of about $1,100 in his hands belonging to the partnership, and subject to the order of the court. The petition further alleged, that, whatever the equities might be as to this fund in the receiver’s hands as between the Pendleys and L. L. Bishop, the fund is subject to the judgment which petitioner recovered against the partners. It was alleged, that the Pendleys were insolvent; that L. L. Bishop had no other property subject to execution; that the latter’s effort to delay this case was with a view to defeating petitioner in the collection of his judgment; that L. L. Bishop had made a deed to his wife to real estate in Whitfield county, where both resided; that the deed was recorded there shortly before this litigation, and that the conveying of the property was for the purpose of hindering, delaying, and defrauding petitioner in the collection of his debt. The prayers of the petition were: that the funds in the hands of the receiver or in the custody of the court be impounded and held until the final determination of this case; that the petitioner have such judgment and order subjecting such funds to the payment of
At the interlocutory hearing Mrs. L. L. Bishop demurred to the plaintiff’s petition, and asked that the case be dismissed on various grounds, among others, that the petition was multifarious and sought to join separate and distinct causes of action, and that there was a misjoinder of parties; that the superior court of Murray county had no jurisdiction of her, as she was a citizen and resident of Whitfield county, and the superior court of that county alone-had jurisdiction of her; that the plaintiff could not, in this petition, have the court impound any fund that might be in the hands of the receiver, no reason being shown why the plaintiff could not be made a party to the ease in which the receiver held the money and obtain relief out of the fund in his hands, etc. On the interlocutory hearing, an oral motion was also made to dismiss the petition, on the above grounds, and others, which was overruled by the court, 'and the following order passed: “Upon the hearing it is ordered that plaintiff be allowed to file petition as prayed; that said funds be impounded as prayed; and that Mrs. L. L. Bishop be enjoined from selling or encumbering the said.lands; and that defendants show cause upon the trial why the prayers of plaintiff should not be granted.” To the overruling of the motion to dismiss, and to the granting of the order above quoted, ,Mrs. L. L. Bishop excepted.
Judgment reversed.