148 Ga. 353 | Ga. | 1918
(After stating the foregoing facts.,) We arc of the opinion that the court properly overruled the general demurrer. The allegations of fraud upon the part of the company, whereby it obtained from the plaintiff the sum of one thousand dollars, were sufficient to show his right to recover as against the company. And if he had first brought suit against the company for the recovery of'one thousand dollars, and had prosecuted his suit to judgment and caused execution to be issued on the judgment and a return of nulla bona to be entered, he would, upon the showing made as to the relationship between Wolf and the defendant company, and the fact that under a scheme to defraud the petitioner and the other creditors of the eompany^all of the property of the company had passed into the control and possession of Wolf, and that he had obtained the title to the same in the prosecution of his scheme by bringing about the sale thereof under a distress warrant, then have had the right to proceed against Wolf under proper proceedings brought. See the case of Tatum v. Leigh, 136 Ga. 791 (72 S. E. 236, Ann. Cas. 1912D, 216), and the decisions there cited. . That being true, it would seem that in this suit, the Commercial Investment Company being a party thereto and it being distinctly alleged that it is insolvent and has divested itself of all its property in the manner above indicated and passed it into the possession of the defendant Wolf, without circuity of action the plaintiff should now be allowed, upon proving his allegations, to have judgment against Wolf.
Judgment affirmed.
