Cleveland v. Chambliss, 64 Ga. 352

Cleveland v. Chambliss

64 Ga. 352 | Ga. | 1879

Bleckley, Justice.

1. A point was made in the argument which was not presented below, and upon which the judge there presiding did not rule. We were urged to reverse the judgment granting a new trial, because the notice given of the intended motion did not specify any ground or grounds upon which the motion would be based. To show that the notice must embrace the grounds, and not merely an admonition of the intention to move, we were cited to 21 Ga., 216; 30 Ib., 677; and Code, §3721, compared with Cobb’s Dig., 503. Let it be granted that the notice was defective for want of fulness, there was opportunity below to urge the defect, but instead of using the opportunity, the plaintiffs in error suffered the motion to be made and disposed of on its merits, without any effort to defeat it on account of the character of the notice. The point appears here in its virgin state, wearing all its maiden blushes, and is therefore out of place.

2. The proposition that equity will hot aid a creditor to pursue assets with which the debtor has parted, until after the debt has been established by judgment, was. pressed upon us, and the following authorities were cited: 4 Ga 319; 3 Ib., 449; 42 Ib., 124; 47 Ib., 530; 56 Ib., 144. But the facts of the present case are special. Here the creditor filed his bill whilst under an injunction not to sue the executor of his debtor; and after the executor’s bill on which the in junction was granted resulted in a decree fixing the amount of the debt, that decree was pleaded by way of amendment to the bill of the creditor, and thus when the latter bill came to a final hearing, the creditor was in a situation to prove his claim, as against the executor, by conclu*360sive evidence. Add to this that the estate of the debtor was certainly insolvent, and we can see no reason for holding that the creditor ought to fail, on the theory that his bill was prematurely brought. We are not ruling upon a demurrer to the bill, but upon the sufficiency of the evidence adduced at the hearing; and even if the bill, as amended, had been demurred to, we see not why the injunction and the insolvency would not have furnished a sufficient excuse for not having a judgment to start with. Under the Code, §1181, the rendition of the decree in the executor’s suit, pending the creditor’s bill, was proper matter for amendment to the latter bill; and it seems to us that after being thus brought in, it could be used as effectively as if an adjudication of the debt had preceded the filing of the bill, and had been alleged as a part of the original case.

3. There were numerous defendants to the bill brought by the executor to marshal assets, among them the complainant in the present bill, the volunteers or donees whose title is now attacked, and one Mrs. Zeigler. Mrs. Zeigler engrafted upon her answer a cross-bill, which had for its object the overthrow of the title of these donees, and the bringing in of the property to pay the debts of the donor’s estate — at least the debt which was due to her. The cross-bill failed, the result being a finding and decree against it. The plaintiffs in error urge that the result thus reached on Mrs. Zeigler’s cross-bill, is binding upon the complainant in the present bill, and hence that the whole controversy is closed, for which reason the verdict was correct and should not have been set aside by the grant of a new trial. Rut the complainant in the present bill was not a party to the cross-bill, and the present bill was filed, if not before the cross-bill, certainly before the latter was heard and disposed of. Why did not the complainant in the independent bill have the same right to attack the conveyances to the donees, by that bill, as Mrs. Zeigler had to make a similar attack by the cross-bill? And why should the failure of her attack bind him, if the failure of his attack, had his bill been tried *361first, would not have bound her ? His relation to the cross-bill was precisely the same as hers to the independent bill, with one exception — he was a party to the original bill out of which the cross-bill sprang. Is a defendant to an original bill affected by the result of litigation between two or more of his co-defendants, on a cross-bill to which he is not a party? Hpon principle, he is not, and if there is any authority to the contrary it is unknown to us. The able and industrious counsel who argued this case for the plaintiffs in error, failed to produce any.

4. The various requests to instruct the jury on the subject of actual fraud, were not in line with the charges of the bill. The bill proceeds on the sole ground that the donor was insolvent, or became so by the reduction of his fortune involved in making the gifts. No actual fraudulent intent is alleged — indeed, the bill seems unusually careful not to impute any such intent. As the bill stands, insolvency is an indispensable fact to be established, before the complainant will be entitled to a decree, and the court was right in treating as irrelevant any request for instructions which would or might leave that question undecided. Adherence to the pleadings is a prime virtue in trying a cause.

5. The fifth head-note presents all we desire to say on the epithet “ bogus,” and on the general result of our deliberations.

Judgment affirmed.