165 Ga. 591 | Ga. | 1928
Lead Opinion
All parties to a cause who are interested in sustaining the judgment of the court below are indispensable parties in this court. Baker v. Thompson, 78 Ga. 742 (4 S. E. 107); Kahn v. Hollis, 124 Ga. 537 (53 S. E. 95); Ray v. Hardman, 146 Ga. 718 (92 S. E. 211); Edwards v. Wall, 153 Ga. 776 (113 S. E. 190); Clark Milling Co. v. Simmons, 155 Ga. 505 (117 S. E. 437); Morris v. Wilson, 159 Ga. 522 (126 S. E. 795); Greeson v. Taylor, 160 Ga. 392 (128 S. E. 177). This rule has been applied in appeals to all intervening parties to a suit. 3 C. J. 1014, § 970, C; Swearingen v. McDaniel, 12 Rob. (La.) 203; Hayden v. Mitchell (Tex. Civ. A.), 24 S. W. 1085; Fairfield v. Binnian, 13 Wash. 1 (42 Pac. 632); Old Nat. Bank v. O. K. Gold-Min. Co., 19 Wash. 199 (52 Pac. 1065); Wiseman v. Eastman, 21 Wash. 163 (57 Pac. 398); Miller v. Richards, 83 Cal. 563 (23 Pac. 936); Lindebaum v. Coale (Iowa), 99 N. W. 162; Gray’s Harbor Commercial Co. v. Wotton, 14 Wash. 87 (43 Pac. 1095). But this rule is not applicable to a person not a party to the case in the trial court. Chason v. Anderson, 119 Ga. 495 (46 S. E. 629). So where interventions were allowed by orders of the court entered thereon, but were not filed until after the judgments excepted to were recorded and a bill of exceptions had been sued out to review such judgments by the losing parties, intervenors in such interventions were not such parties of record as made it necessary for the excepting parties to make them parties defendant to the bill of exceptions. Wiseman v. Eastman, supra. Intervenors, whose in
Plaintiffs in error having demurred generally to the petition, and having excepted to the judgment overruling it, the bill of exceptions was brought to review a final judgment in the case, and the writ of error will not be dismissed upon the ground that the case is still pending in the court below. Civil Code (1910), § 6138.
““A court of equity may appoint a receiver to take possession of, and hold subject to the direction of the court, any assets charged with the payment of debts, where there is manifest danger of loss, or destruction, or material injury to those interested.’ Civil Code (1910), § 5479. However, “Creditors without lien can not, as a general rule, enjoin their debtors- from disposing of property, nor obtain injunction or other extraordinary relief in equity. ’ § 5495. Moreover, “Equity will not take cognizance of a plain legal right, where an adequate and complete remedy is provided by law.’ § 4538. And furthermore, “The power of appointing receivers and ordering injunctions should be prudently and cautiously exercised, and except in clear and urgent cases should not be resorted to.’ § 5477. Coolewahee Co. v. Sparks, 148 Ga. 211 (96 S. E. 131). And applying the foregoing principles, the plaintiff without a lien was not entitled to the appointment of a receiver.” Coe Mfg. Co. v. Dublin & Laurens Bank, 160 Ga. 675 (128 S. E. 908). It follows that the court erred in overruling the demurrer of the plaintiffs in error to the petition.
Judgment reversed.
Rehearing
ON MOTION EOR REHEARING.
The defendants in error filed their motion for a rehearing, upon the grounds: (a) that the plaintiffs in error were not allowed to intervene in the court below, and accordingly could not become plaintiffs in error; (b) that in ruling as in the
The history of the connection of the plaintiffs in error with this cause is as follows: On August 10, 1927, they filed with the clerk of the lower court an intervention for the sole purpose of resisting the appointment of a receiver, upon certain specified grounds. This intervention was duly filed, and was afterwards presented to the trial judge, who heard argument thereon, and withheld his decision until August 22, 1927, when he entered thereon an order as follows: “The within intervention for the purposes stated therein is disallowed.” On August 10, 1927, certain other parties filed interventions and asked to be made parties plaintiff. The plaintiffs in error filed objections to these other intervenors being made parties; and demurred to and moved to dismiss the ease, including the original petition and interventions, and objected to the appointment of receivers, upon grounds stated. After argument upon the demurrer and motion to dismiss, the court took the same under advisement; and on August 22, 1927, judgment was rendered as follows: “The within demurrer and motion to dismiss coming on in regular order and by regular appointment to be heard, it is considered, ordered, and adjudged that said demurrer and motion be and the same is overruled and denied of each and every ground thereof.” To the order disallowing their intervention, and to the judgment overruling their demurrer to the petition and intervention and their motion to dis
We agree fully with able counsel for the defendants in error that the refusal of the court to make a stranger a party to a cause is interlocutory in its nature, and that a writ of error will not lie to such refusal where there has been no final judgment in the case. See the three decisions last cited. So, if the proper construction of the above order entered upon the intervention of the plaintiffs in error is to be held as a mere refusal to make them parties to this cause, and if there had been no final judgment thereon, such order would be interlocutory in its nature, and a writ of error would not- lie to this court to review the same. But the above order should be construed in connection with the judgment overruling the demurrer, to the petition; and so construed, it should be held not to be a mere refusal to make the plaintiffs in error parties to the cause, but a judgment denying the relief which these parties were seeking. Otherwise the court could not appropriately refuse to make them parties, and at the same time overrule the demurrer to the petition. Furthermore, the principle announced in the above cases is not applicable, because the judgment overruling the demurrer of the plaintiffs in error was a final judgment in the cause as to them, and to such judgment a writ of error would lie to this court. Such judgment finally disposed of the case as to those parties. Civil Code, § 6138. This disposes of the first three grounds of the motion for a rehearing.
We come now to consider the fourth ground. It is insisted by counsel for the defendants in error, that, conceding that the original petition did not make a case for the appointment of a receiver, for the reason that the original plaintiffs were without judgments or other liens, certain judgment creditors afterwards intervened and were made parties, and that the making of these parties cured the defect in the petition as originally brought. We do not think that this position is sound. Intervenors took the case as they found it. Charleston &c. Railway Co. v. Pope, 122 Ga. 577 (50 S. E. 374); Seaboard Air-Line Railway v. Knickerbocker Trust Co., 125 Ga. 463 (54 S. E. 138); Virginia Carolina Chemical Co. v. Provident &c. Society, 126 Ga. 50 (54 S. E. 929);
So we feel constrained to deny the motion for a rehearing.
