Clements v. Fletcher

155 Ga. 802 | Ga. | 1923

Hill, J.

(After stating the foregoing facts.) This is the second appearance of this case in the Supreme Court. Clements v. Fletcher, 154 Ga. 386 (114 S. E. 637). The trial court in that case had passed the following interlocutory order: “The within demurrer coming on to be heard, after argument of counsel it is ordered by the court that the said demurrer be and the same is hereby overruled upon each and every ground thereof. It is further ordered that a receiver and all injunction in said case, as prayed for, be and the same is hereby denied.” The plaintiffs in error brought that case to this court by writ of error, excepting to the order of the trial judge in overruling the demurrers to the petition as amended. There was no exception to that portion of the order refusing to appoint a receiver and den}dng an injunction. This court held, in part: “ The present suit is against not only the executor but, the National Surety Company, which made the bond for the executor, seeking a judgment against both. The facts alleged in the petition vrere sufficient to set out a cause of action for some of the relief prayed; and therefore the court did not err in overruling the demurrers. Lester v. Stephens, 113 Ga. 495 (39 S. E. 109); Williams v. Lancaster, 113 Ga. 1020 (39 S. E. 471); Strickland v. Strickland, 147 Ga. 494 (94 S. E. 766).” Some of the prayers in that case were, that the executor be required to assent to the legacies to petitioners; that an accounting be had; that it be determined how much of the estate in the hands of the executor should go to the petitioners; and that they have judgment against Clements and his bondsmen, etc.

Subsequently to passing the order set out above, and while the case was still pending, the plaintiffs in the original case presented to the judge of the superior court an ancillary petition as set out in the foregoing statement of facts, and on the second hearing-evidence was introduced which was substantially the same as on the former hearing, as appears from a comparison of the present record with that in the former case; and upon the conclusion of the evidence the court passed an order, as heretofore set out, removing the executor and appointing a receiver. Error is assigned upon this judgment, upon the ground that the court exhausted his authority in the case. We are of the opinion that where the judge rendered a judgment upon an application for injunction, the removal of the executor, the appointment of a receiver, etc., in which he refused to grant an injunction and appoint a receiver, he could not afterwards, upon substantially the same facts render another judgment removing the executor and appointing a receiver. Parker v. Weaver, 151 Ga. 547 (107 S. E. 484).

We also reach the conclusion that under the pleadings and the evidence the trial judge erred in removing the executor at an interlocutory hearing and in appointing a receiver, especially in view of the fact that the executor was solvent and had given ample security. Judgment reversed.

All the Justices concur.