103 Ga. 753 | Ga. | 1898
F. J. Cooledge & Brother and other unsecured creditors filed'a petition in the superior court of Floyd county, against William Bradford, doing business under the firm name of the Bradford Drug Company. It was brought under the provisions of section 2716 et seq. of the Civil Code, known as the traders’ act. On the presentation of the petition, the court, on June 5, 1893, appointed a temporary receiver, who at once took into his possession, among othe.r things, a stock of drugs,
On August 7, 1893, the plaintiffs, by leave, amended the original petition, and averred that the debt claimed by Leonora Bradford never in fact existed; that the note and mortgage to her were made for the purpose of hindering, delaying, and defrauding the creditors of William Bradford; that Leonora Bradford was not in fact a creditor of William Bradford, neither before
In the case of the Citizens Bank of Georgia v. Hubbard, 70 Ga. 411, where the proceeding was similar to that in this case and under the same provisions of law, this court held that one “is not an actual party to an equitable case until he has been made so in some way known to the law,” and “though the plaintiff below may be interested in the creditors’ bill, and as a creditor elect to come in according to the method provided in such cases and claim as a party to the suit, bearing his proportion of the expenses of the litigation, until he does come in he is not to be held as a party to such suit. To constitute himself such a party, he must either join in the filing of the bill, or subsequently be made a party thereto.” The principle of that case as to the non-liability of one not a party for costs and expenses is applicable to one like the present, where the mortgagee merely gave notice to the court of the existence of the mortgage and asked that the lien which it created be preserved and its
In the case of the Lowry Banking Co. v. Abbott & Smith, 87 Ga. 134, where a proceeding in the nature of a creditor’s bill had been filed against certain traders, the Lowry Banking Co., which held mortgages previously given to it by the debtor, came in and made itself a party complainant, and set forth the fact of the existence of its mortgages, and voluntarily litigated with the other creditors. This court held that such action upon the part of the mortgage-creditor recognized the necessity for the petition and ratified the filing of it, and thus it became chargeable with its proportion of the expenses of the suit. This ruling is in harmony with section 2718 of the Civil Code, to the effect that creditors who become parties to the petition, before the final distribution of the assets, become chargeable with •a due proportion of the expenses. In the case of the Central Trust Co. v. Thurmond, 94 Ga. 747, this court held : “But the scheme of the statute [traders’ act] is that these fees [counsel fees], as a part of the expenses of litigation, shall be borne in ■some just proportion by all who come in to claim the fruits of the proceeding; and even a voluntary party defendant who ul
Reversed.