106 Ga. 282 | Ga. | 1898
On September 20, 1893, Frank & Adler and other ‘ creditors of Louis Herz brought their petition against Louis Herz, J. -E. DeVaughn, John F. Lewis & Son, Gabe Lippman, ■ J. R. Fried & Comp.any and Joe Berekliardt, alleging that Louis 'Herz bad,sold out his stock of goods to Henrietta Herz just ’.prior to the filing of the petition, and that before selling out the'ktock he had executed mortgages on the same to the other • defendants. It was alleged that the sale was fraudulent, and ■ also that the mortgages were fraudulent and executed for the ; purpose of hindering and delaying creditors. Subsequently in- ' terventions by other creditors were filed. In the intervention 'filed by Claflin & Company and others, an attack was made upon the bill of sale made by Louis Herz to Henrietta Herz, upon-the^gFOund that it was in effect an attempted assignment,
Upon the passage of this order Mrs. Herz gave the bond required, the material parts of which were as follows: “The condition of the above bond is such that should the said Henrietta, Herz, principal, Gabe Lippman and E. B. Lewis securities, pay into Macon superior court, to the clerk of said superior court,, the value of the stock of goods now in the hands of the receiver,, as appears from the inventory of the same as made by said receiver, and the additional sum of five hundred dollars to cover the notes and accounts in the hands of the receiver, and the= additional sum of sixty-two dollars .in cash now in the hands-of said receiver, M. B. Gilmore, provided that upon the trial of said case, above stated, that the said several creditors, to wit,. Frank & Adler [and others], shall succeed in securing judgment against said stock of goods or on said bond given in lieu of said stock of goods, or said assets for which said bond is; given; which condition if complied with and performed, said, principal and securities shall be discharged, otherwise this bond shall be of full force and virtue. The true intention of this bond being, that as to all creditors who are parties to this litigation, that said bond shall stand in place and be taken in lieu: of said stock of goods, and that none of the parties to said litigation, either plaintiff or defendant, shall lose any lien upom said property or shall suffer any change of their status by-reason of the aforesaid order and this bond, but their rights; shall remain as if the order had not been granted and this bond had not been given. It is further contracted and agreed, that, should any of the creditors in said litigation, whether plaintiff or defendant, recover judgment upon the final trial of said case,, according to the terms and conditions of this bond order, then judgment may be entered for the amount of said recovery against the principals and securities oh this bond as in cases of appeal bonds; judgment to be entered not to exceed liability under this injunction, bond.” Upon the execution of the bond the stock of goods and assets went into the hands of Mrs. Herz
Upon this verdict a decree was entered by the court. The-decree recites that it was admitted by counsel' for petitioners, and defendants that the goods identified by various petitioning-creditors, and which were in the stock of Louis Herz at the-time that the petition and the various interventions were filed,, were of values aggregating in amount the sum of $4,418.81. 11 further recites that it was admitted that the debts to secure-which Lou.is Herz gave to the defendants certain mortgages were pre-existing debts, and that counsel for- petitioners also-admitted that Mrs. Herz had given to Louis- Herz her promis. sory note for eight hundred dollars, which note-was not paid by her until after the commencement of the proceedings to set aside the bill of sale from Louis Herz to her. The decree further-recites: “The jury having found also that Mrs. Herz agreed to assume and pay the mortgages given by the said Louis Herz: out of the proceeds of the property covered- by said bill of sale: from said Louis Herz to her, when she should sell said property, and that she had not paid off said other mortgages before-the proceedings were filed in this case attacking the same, and that she had paid no part of the purchase-price of said stock, and other assets conveyed to her in said bill of sale before she-had notice that said mortgages, which she had assumed, were-given to secure pre-existing debts, and that said Henrietta Herz: having given her bond with Gabe Lippman and E. B. Lewis as sureties, under the order of this court, on the 4th day of" October, 1893, in order that the said -Henrietta Herz might repossess herself of the said stock of-goods and other assets conveyed to her in said bill of sale, and to prevent the appointment of a receiver therefor, payable to the clerk, of this «court-
The case came to this court, and it was held, that “The special questions submitted to the jury were framed in accordance with and authorized by the pleadings and evidence in the case ” ; .and also that “There was sufficient evidence to support the ver•diet.” Herz v. Claflin Co., 101 Ga. 615. After the affirmance ■of the judgment by this court, the defendants in the case brought their petition to set aside and correct the decree rendered in "the original- case, upon the ground, among others, that the •court had no authority, under the issues made in the case and the verdict of the jury, to decree in favor of the plaintiffs in that •case any sums for goods not identified. This petition was dismissed on demurrer. To the decision of the court dismissing -the petition the petitioners excepted, and brought the case to "this court, when the judgment was again affirmed, the court, however, declining to pass upon the merits of the petition. Herz v. Frank & Adler, 104 Ga. 638. Execution was issued upon the decree of the court in the original case and also upon the supersedeas bond given by the defendants, and Henrietta Herz paid on the execution first mentioned the sum of $7,713.12, the same being in full satisfaction thereof. The sheriff, by agreement of all parties, paid over to counsel for the petitioning creditors the sum of $4,910.30, which was the amount decreed to them as the value of the goods identified by them as their own. The mortgagees then brought their petition alleging that their mortgages were prior liens upon the stock of goods bought by Mrs. Herz from Louis Herz, and were prior liens upon the fund remaining in court. They alleged further that their mortgages have been foreclosed and executions issued; and prayed that the sheriff be directed to pay over to them the amounts due on their mortgages, and prayed further that the sheriff be directed to hold the money in his hands until the further order of the court. To this petition H. B. Claflin Company and the other creditors of Louis Herz who had obtained judgments in the decree above referred to made themselves parties and moved the court to award the fund to them. The sheriff answered that he had received from Henrietta
In order to determine whether or not the judgment complained of in this case was erroneous, it becomes necessary at the outset to ascertain what effect the decree rendered on July 15, 1896, had upon the rights of the various persons who were parties to the case. If those now claiming the fund in court under executions issued upon the foreclosure of mortgages executed by Louis Herz are estopped by the decree from contesting the right of the plaintiffs in error to this fund, the decision awarding such mortgagees the fund was, of course, erroneous. If they are not so estopped, then the determination’of other questions presented in the record becomes necessary. We are of opinion that the mortgagees are concluded by the decree from claiming any interest in ' bind which was brought into
In determining the extent and scope of the decree it is.to be kept in mind that wherever the decree deals in any way with the bond, we must consider it as dealing with the property which the bond represented. Whenever the judge gave any person a right to proceed upon the bond, it was equivalent to recognizing an existing right in the property. If the decree failed to give any plaintiff or defendant any remedy upon the bond, it would be, in effect, a judgment that that plaintiff or defendant had no right in’the property. The decree in terms gives to’ those creditors who had identified goods judgments against the sureties on the bond for amounts aggregating the value of the identified goods. This was equivalent to a decree
Judgment reversed.