185 Ga. 310 | Ga. | 1937
This is the' second appearance of this case in this court. In Byrd v. Prudential Insurance Co., 182 Ga. 800 (187 S. E. 1), this court reversed the judgment of the judge of the superior court appointing an interlocutory receiver, and held (a) that the equitable amendment seeking the appointment of a receiver was not verified as required by law; (b) that the judge erred in admitting this amendment in evidence on the hearing; (c) that the evidence of the defendants, uncontradicted by the-evidence for the plaintiff, demanded a finding in favor of the defendants. Before the judgment of the Supreme Court was made the judgment of the
To the allowance of this amendment the defendant pleaded the judgment of the Supreme Court in 182 Ga., as res judicata of the subject-matter of the amendment. She also filed a plea to the jurisdiction of the superior court to consider this amendment, alleging that until the judgment of the Supreme Court had been made the judgment of the trial court the latter tribunal was without jurisdiction of the case. She also filed a demurrer to the amendment, alleging that paragraph 20 thereof “is too vague and indefi
After the foregoing decision was rendered and after the remittitur was filed in the court below, reversing the judgment of that court for reasons stated in the decision, the plaintiff offered an amendment to its petition, containing, among other things, the new verification as indicated above, and alleging that since the previous hearing the principal debt had matured regardless of the accelerating clause, that the debt had increased by reason of accrual of taxes and interest which the defendants were obligated to pay; that the value of the property had so depreciated that it was not worth more than fifty-five per cent, of the debt; that the income from rentals was not sufficient to cover the accruals of interest and taxes; and that the defendants were insolvent; and renewing the application for appointment of a receiver.
(а) The court did not err in striking a plea of res judicata as to this amendment, by one of the defendants, hereinafter called the defendant, based on the ground that the former decision constituted an adjudication that the plaintiff was not entitled to the appointment of a receiver. Collins v. Carr, 116 Ga. 39 (42 S. E. 373); Bass Dry Goods Co. v. Granite City Mfg. Co., 116 Ga. 176 (42 S. E. 415); Austin v. Central of Ga. Ry. Co., 3 Ga. App. 775 (61 S. E. 998).
(б) The court did not err in striking the defendant’s plea to the jurisdiction, asserting, that, the case having been carried to the Supreme Court after the former hearing as indicated above, the trial court had no further jurisdiction until the remittitur from the Supreme Court was made the judgment of the trial court; it appearing from the record that the remittitur from the Supreme Court had been filed in the office of the clerk of the trial court at the time of the filing of the plea to the jurisdiction. Bartlett v.
(c) The court did not err in striking a so-called traverse of service of such amendment, wherein the attorney of record for the original defendants denied that he was attorney for the executrix of one of such 'defendants since deceased, and challenged, upon this ground, the propriety of an order directing that the amendment be served on such attorney as counsel for the defendants. Treating the traverse as containing a correct statement of fact, service of the amendment was really unnecessary, and any lack of service did not affect the judgment allowing the amendment. Heflinger v. Heflinger, 161 Ga. 867 (132 S. E. 85); Miller v. Georgia Railroad Bank, 120 Ga. 17 (2) (47 S. E. 525).
(d) This being an equity case, there is no merit in the defendant’s demurrer to such amendment, so far as based on the ground that the allegation that the debt had matured since the filing of the original petition added a new cause of action, and that the allegations as to facts occurring subsequently to the filing of the original petition were not the subject-matter of amendment. Becker v. Donalson, 133 Ga. 864 (7) (67 S. E. 92); Wimberly v. Ross, 152 Ga. 258 (109 S. E. 500); Hogan v. Cowart, 182 Ga. 145 (7) (184 S. E. 884). The other grounds of the demurrer are controlled adversely to the demurrant by the rulings stated above.
In view of the positive verification added by amendment, the court did not err in overruling the defendant’s motion to exclude from evidence the original petition and the first amendment, on the grounds urged.
The court did not err in admitting in evidence the affidavits of two witnesses for the plaintiff, over objection that the facts stated in these affidavits were necessarily within the knowledge of “these gentlemen,” at the time of the former hearing, and that the former decision therefore concluded the right of the plaintiff to introduce such evidence upon a subsequent hearing. The rule as to' conclusiveness of judgments, as stated in the Code, § 110-501, has no application to the facts thus stated.
The effect of the former decision was merely to reverse the judgment appointing a receiver and to remand the case for a new hearing. Under the pleadings and the evidence the judge did not, on the second hearing, abuse his discretion in appointing a re
Judgment affirmed.