Cohen v. McCandless

42 S.E.2d 739 | Ga. | 1947

1. A failure to give notice to the defendant in error, as required by Rule 7 of the new rules of appellate procedure, is not reviewable by this court.

2. Where in an equity case assets are being administered, and an order has been entered and published in compliance with the act approved March 24, 1939 (Ga. L. 1939, p. 344; Code, § 37-410), one who does not seek to intervene until after the time fixed therefor is barred from intervening and from participating in the distribution of the funds in court, whether he seeks to do so by a new claim or attempts to amend a previous claim.

No. 15810. MAY 15, 1947. Robert L. Rhodes Jr. filed a suit in equity, returnable to the March term, 1941, of Chatham Superior Court, against Standard System Investment Corporation and D. T. Simpson. On August 18, 1941, the defendants' property was placed in the hands of a receiver. The case was referred to an auditor, with directions that he report his findings to the court at the December term, 1946. On September 9, 1946, the trial court issued the following order: (After stating the case) "It appearing to the court, . . in the above case, that from the assets recovered by the receiver, all of the creditors of said corporation have been paid or their claims settled and adjusted, and that there remains in the hands of the receiver approximately thirty-five hundred ($3500) dollars over and above all estimated costs and expenses, the court thereupon, upon its own motion, orders that all parties concerned claiming an interest in said assets shall intervene in this cause by filing their claims, verified, with any passbooks, deposit slips, statements or other evidence of their claims, on or before Monday, December 2, 1946, and all such parties claiming an interest in said assets are hereby notified of this order and cited to file their claims by intervention with Hon. W. B. Scott, clerk of court, in default of which they shall be forever barred from intervening or making claim in this case. Done in open court at Savannah, Georgia. this 9th day of September, 1946." This order was duly published.

On February 3, 1947, the auditor presented his report, and it was ordered filed. On February 11, 1947, Sarah R. McCandless, the defendant in error, filed a petition, in which she sought to file a claim based upon certain preferred stock that she allegedly held in the corporation. She offered the instrument as an amendment to her claim on common stock, which claim had been filed on February 3, 1943; and she alleged that her claim on the preferred stock had been omitted by inadvertence. The intervention, over the objections of the plaintiffs in error, was allowed and ordered filed. On February 17, 1947, Girard M. Cohen and E. Maude Cohen, the plaintiffs in error, who were creditors of the corporation, filed a petition, objecting to the intervention of the defendant in error, and praying for an order rescinding the order allowing her intervention filed. The trial court denied the prayers of their petition. The exception is to the judgment allowing the intervention, and to the judgment on the petition to rescind the order allowing the intervention. 1. The motion to dismiss the bill of exceptions is based upon a failure to give the notice provided for in Rule 7 of the new rules of appellate procedure (Ga. L. 1946, pp. 726, 735). This rule requires notice to the defendant in error before the bill of exceptions shall be certified by the trial judge, unless there be a waiver by the defendant in error. Rule 12 (Ga. L. 1946, p. 739) provides in part: "The action or non-action of the trial judge as to requiring notice under this Section and Part 7 of this report, which is to be added to the Code as a new Section, shall not be reviewable." It follows that this court is without authority to consider the question raised in the motion to dismiss.

2. The Code, Ann. Supp., § 37-410 (Ga. L. 1939, p. 344), provides as follows: "In all equity cases now pending, or hereafter pending, in the superior courts of this State, wherein assets of either or both parties to the cause are being administered, marshaled or otherwise disposed of by the court, the court, upon motion of either party to the case, or, on its own motion at least 60 days before the trial term, shall pass an order to be entitled in the cause and addressed to all parties concerned, requiring all parties claiming an interest in said assets to intervene in the cause not later than a certain date, which is to be fixed by the court, of not less than 60 days from the date of the order and not more than 90 days from the date thereof, and after such order is so passed the same shall be published in the newspaper in the county, in which the case is pending and in which the sheriff's advertisements are published, twice a month for two consecutive months. After said order has been so passed and published, and after the expiration of the time for intervening, as fixed by the order, all parties interested in said assets shall be forever barred from intervening in the case."

In Suttles v. J. B. Withers Cigar Co., 194 Ga. 617, 619 (22 S.E.2d 129), this court said: "The four principal Georgia cases dealing with the orders issued by courts of equity, for the purpose of fixing a date beyond which intervenors would be barred from participating in funds being administered and distributed, are Columbus Iron Works v. Sibley, 164 Ga. 121 (137 S.E. 757): Industrial Realty Co. v. International ReinsuranceCorp., 183 Ga. 605 (189 S.E. 49); Withers v. Hatcher,185 Ga. 380 (195 S.E. 183); Gainesville National Bank v.Martin, 187 Ga. 559 (1 S.E.2d 636). These decisions were rendered before the act of March 24, 1939 (Ga. L. 1939, pp. 344 et seq.), entitled `An act to provide for limitation of time in which parties may intervene in any case in equity,' etc. That act (§ 1) not only requires that in all equity cases wherein assets are being administered the court shall, sixty days before the trial term, enter an order entitled in the cause and addressed to all parties concerned, requiring all parties claiming an interest in said assets to intervene not later than a certain date, but the date so fixed by the court must not be less than sixty days nor more than ninety days therefrom. It is further provided that the order so passed shall be published in the manner therein pointed out. Section 2 is as follows: `Be it further enacted by the authority aforesaid, that after said order has been so passed and published, and after the expiration of the time for intervening, as fixed by the order, all parties interested in said assets shall be forever barred from intervening in the case.' By the terms of section 2 the tax-collector was barred, since it declares that `all parties interested in said assets shall be forever barred from intervening in the case.' Neither the fact that all parties and intervenors might be chargeable, as a matter of law, with notice that the taxes had not been paid, nor that taxes are under our laws of the highest dignity, obviated the necessity of the filing of an intervention as required by the statute. Nor does the fact that the tax-collector was not an actual party to the record take him out of the class of `parties interested' in the assets, so as to make the provision inapplicable to him."

We think that the ruling made in the Suttles case is controlling in the instant case. The claim filed, by way of intervention on the part of the defendant in error, on February 3, 1943, was based upon common stock held by her. This claim had been recognized and paid. The claim that she filed on February 11, 1947, was based upon preferred stock owned by her; and we think that it was an entirely new claim, in no way connected with the first claim, and could not be tacked on by way of amendment to a claim based upon common stock, which had been terminated by being paid. Moreover, we think that it makes no difference whether the second claim be considered as an amendment to the first claim or as a new and independent claim. The very purpose of the act of 1939, supra, was to fix a date certain when an estate being administered by an officer of the court, such as the estate was in the instant case, can be finally closed, rights fixed, and distribution of the assets made. If claims are to be recognized. either by way of amended claims or as new claims, after the date fixed in accordance with the provisions of the act, the very purpose of the law would be defeated.

It follows that the trial court committed error in allowing the intervention.

Judgment reversed. All the Justices concur, except Atkinson,J., who dissents.