Burchard v. Boyce

21 Ga. 6 | Ga. | 1857

By the Court.

McDonald J.

delivering the opinion.

This case comes before this Court on exceptions to the decision of the Circuit Judge, refusing to grant a continuance of the motion for an injunction and the [appointment of a. receiver; and to his order directing an injunction to issue.

The bill was filed on the 29th day of August, 1856. On the 30th day of the same month, a notice was served on the-defendant, that a motion would be made in said cause, before the Judge of the middle Circuit, for the appointment of a receiver and for an injunction. One of the counsel employed by the defendant to respond to the motion, appeared before the presiding Judge at the appointed time, and moved a postponement of its consideration for a reasonable time and to a convenient day:

1st. Because the defendant cannot be called out of his county to answer and to meet a motion for this interlocutory order.

2d. Because neither the defendant nor his counsel have had time and opportunity for preparing and availing them- . selves of their rights in this behalf.

3d. Because the case, as it appears by the bill itself, is not a case of such emergency as to demand action on the part of the Court so hasty and so injurious to the character of the defendant.

On this application, the Court postponed the motion so far as the appointment of receiver was concerned, but granted the injunction. The refusal of this motion to continue, is made the first ground of error.

[1.] As we remarked in the case of Semmes vs. Mayor and Council of Columbus, 19th Geo. R. 484, “the Chancellor may order an injunction instantly, on the exparte shewing of the complainant; and the exigency of the case frequently requires that he should do it.” There is nothing in the Constitution or laws that requires the application to be made in the county of the defendant’s residence. It may be made at chambers, at any place which suits the Chancellor’s convenience. 33 at the notice served in this case does not call the party ouf of his county. The defendant was simply notified of. the time, and not the place, that the motion would be submitted to the Chancellor. The injunction was ordered at chambers. The Constitution prescribes the place at which civil causes shall be tried, and although equity cases are not embraced by the provisions of the Constitution, Courts of Equity have, in this respect, conformed to the requirements, but they never have held, and very properly too, that all motions growing out of an equity cause, or connected with it, must be beard in the county of the defendant’s residence. The defendant, on notice of an application for an injunction, is not called to answer out of his county. He may appear or not at his option, and he may show cause against granting the injunction, in any manner allowable by the chancery practice, and one mode of showing cause, is by answer to the bill, denying the facts on which the Chancellor awards the injunction. His answer is to be filed in the county where the cause is to be heard.

[2.] In sustaining their second ground in the motion of defendant’s counsel for continuance, they showed for cause their prior indispensable business engagements. The Court did Host feel warranted in acknowledging a principle which might place a party so much in the power of his adversary. In the complainant’s view of his case, if statements in his bill, sworm to by him, are an index to his opinion, it admitted of ho delay. Parties and their counsel are bound to diligence in preparing to meet their cases, and the greater the emergency In which the opposite party is placed, the greater must be the diligence. The want of it is never excused by the multitude of pressing calls on other business.

[3.] We say, in regard to the third ground, that we .see nothing in the allegations of the bill, sworn to as they were, to warrant us in imputing to tire Circuit Judge too much haste in ordering the injunction to issue. The hill makes a strong ease, and one which, if true, shows that speedy action by the Court was necessary to protect the complainant from probable injury. Great injury to the complainant-might have been the consequence of delay, while the damage to the defendant, if any, must have been but little, for under our laws and practice, the defendant was entitled, by answering, to move a dissolution of the injunction.

After the motion for a continuance was disposed of, the counsel for the defendant resisted the granting of the injunction on several grounds.

Enough has been said on the first ground, “that it cannot be granted out of the defendant’s county,” to show that it cannot he supported.

[4.] The next ground, that the hill is multifarious and imperfect, was properly overruled by the Court.

The object of the bill was to dissolve the partnership; have an account from the defendant of their entire partnership concerns; and enjoin him from a further interference, to complainant’s injury, with the partnership affairs. The complainant was. connected with the defendant in two partnerships. Of the first partnership, Edward B. Ward was a member; He died, and complainant and defendant, being survivors, formed a new partnership, and carried on the business raider a new firm. The defendant was the active partner of the second firm. The effects of the first firm went into the second, but subject to the payment of the debts. The clear surplus was the fund to which the survivors and the representative of the deceased partner were entitled, and the interest of the survivors therein was all they had a. right to claim, as capital arising from that quarter in the new firm. This they had a right to claim. An investigation of the affairs of the first firm is therefore indispensable, in taking an account of the last, and adjusting the rights of the partners. If the prayer of the bill had been confined to the latter object, an account of the whole must have been had. There could have been no just decree without it. The prayer cannot alter the nature of the bill in this respect. If the case made by the stating and charging parts of the bill is not multifarious, the prayer of the bill will not make one. Discard the special prayers, and there is a prayer for general relief. Worthen vs. Brantley & Daniel, 5th Geo.R. 571, would seem to me to be decisive of this case.

[5.] The representatives of the deceased partner ought to be a party and the bill may be amended for that purpose.

In regard to the other grounds, we will remark, that in considering them we are governed by the statements in the bill. It makes a strong case against the defendant, of want of good faith in the representations which induced the- complainant to enter into business with him; of breach of duty; of want of skillful management of the affairs of the partnership ; of improper deportment towards customers, &c. - It prays for a dissolution of the partnership. We are not prepared to say that the Chancellor exercised his power and discretion unwarrantably and illegally in ordering the injunction and therefore affirm all the judgments complained of in the record.