70 Ga. 278 | Ga. | 1883
On the 28th day of November, 1882, the defendants in error filed their bill, under the act of September 28th, 1881, against J. H. Cowsart &• Company, alleging that they were traders engaged in business, indebted to complainants,
The bill was sanctioned by the chancellor, a restraining order granted, and defendants required to show cause on the 6th day of December next thereafter, why an injunction should not be granted and a receiver appointed as. prayed for by the bill. The hearing of the application was afterwards continued to the 25th day of January following.
On this day, Oowsart & Company showed for cause against the prayer of the bill, that on the 23d day of November, five days before the filing of complainants’ bill,, they had bona fide and for a valuable consideration sold all their stock of merchandise, store-fixtures, notes and accounts, on books or otherwise, to H. C. Kimbrough, and had from that time ceased to be traders or to do business, as such.
Blanchard & Burrus, I. Joseph, president of the Pioneer Co-operative Company, and Wm.L. Tillman, on the day of the hearing for injunction and receiver, appeared before the chancellor and by petition set forth that they were lien creditors, having mortgage fi. fas. against Oowsart & Company upon all their stock of merchandise, notes, etc.; that their said mortgage was executed by the said Oowsart & Company, on the 10th day of November preceding the filing of complainants’ bill; that they had foreclosed the same, and had the stock of goods levied upon by the sheriif of the county on the 20th day of January instant, the amount of which several mortgage fi. fas. was about twelve hundred dollars ; and that the stock of merchandise, together with the amount due upon the books, etc., would not equal so much as that sum, and perhaps not the half thereof. Wherefore, the premises considered, they prayed
The complainants supported their bill by proof of their claims, the failure of the defendants, and that M. B. Kimbrough, one of the firm of Cowsart & Company, had said, on a day after the alleged sale of all the assets to HC. Kimbrough, that he had been trying all that day to collect money due the firm, and that he promised the party to whom he was speaking that, if he would let him alone in business, he would do all he could to collect what was due on them.
The defendants, Cowsart & Company, in support of their answer, filed their joint affidavit of the truth of the facts therein set up, and that they had executed the mortgage to their co-defendants on the 10th day of November, preceding the sale, to H. C. Kimbrough on the 23d of the same month, and eighteen days before the filing of complainants’ bill. Affidavits of other parties to the'sale to H. 0. Kimbrough were offered, as well as to the fact that they had ceased to do business.
The defendants, Blanchard & Burrus, I. Joseph, president, etc., and W. L. Tillman, submitted their joint mortgage, with affidavits for foreclosure; their separate fi.fas. dated January 19, 1883 ; the levies entered thereon January 20, 1883; also affidavits showing that the value of the stock of goods on hand about the 27th day of December, 1882, was only from one thousand to twelve hundred dollars.
Upon the pleadings and proofs, after argument had, the chancellor granted the injunction, and appointed a receiver
As has been set forth in this opinion, the bill of complainants was filed under the act of 1881, with the view of accomplishing that which was done by the chancellor. The plaintiffs in error insist that under law, and the evidence before him, his judgment was erroneous, and we are asked to review and reverse that judgment.
It is to be borne in mind that the chancellor obtained jurisdiction in this case against the original defendants upon the grounds named in the act of 1881, under his view of the facts presented to him at the hearing of the application for the granting of an injunction and the appointment of a receiver. The plaintiffs in error, being mortgage creditors, came voluntarily in, and asked to be made parties defendant to that bill, and set up their mortgage liens against the prayer of the complainants, who, upon the grounds above stated,‘attacked their liens; and the chancellor, under the facts before him, both as to the original and these defendants, held that the ends of justice would be more certainly reached by holding up the assets until there might be an investigation of all the facts of the case.
Whilst it is true that, under the act of 1881, pre-existing liens are not to be interfered with, nor are parties with such liens to be hindered and delayed in the exercise of their usual common law remedies, yet if they voluntarily come in, and ask to be made parties defendant to a bill filed under that act, and submit their liens to that investigation which a court of equity may exercise over them, and they are assailed for invalidity, or cast under such suspicion as to induce the chancellor to put the property they are seeking to sell in the hands of a receiver, they must abide his judgment. But still, if the liens are valid, they must be preserved, and it will be the duty of the chancellor, under the law, to see that this is done,
Whether this court would have held under the facts made to appear to the chancellor below, that an injunction should have been granted and a receiver appointed, is not the question before us, we are only to decide whether he committed an error of law, or abused that discretion with which he is empowered to pass on the facts as they were submitted.
It not having been shown to us that he did either, his judgment must be affirmed.
Judgment affirmed.