Cordele Ice Co. v. Sims

120 Ga. 428 | Ga. | 1904

LamaR, J.

The petition of S. R. Sims against the Cordele Ice Company, Hill, Parker, Ryals, Mrs. G. R. Sims, and T. L. Blackwell as administrator of G. R. Sims was met by a demurrer on the grounds that it set out no cause off action, and that there was a misjoinder of causes of action and^a misjoinder of parties defendant. The judge of the superior court, after argument thereon, sustained the demurrer and dismissed the equitable petition. This court held that the petition set out a cause of action, but that the special demurrer should have been sustained because there was a misjoinder of causes of action and of parties defendant. It affirmed the judgment of the lower court, with directions that the plaintiff be allowed to meet the objections raised by the special grounds of the demurrer, and that upon his doing so the case stand for trial as thus amended, and upon his failure to do this the judgment below be unconditionally affirmed. 119 Ga. 597. On the return of the remittitur (unaccompanied by the full opinion).the plaintiff presented an amendment which undertook to comply with the directions of this court. In response to an inquiry by the judge, counsel for the Cordele Ice Company stated that they had no objection to the amendment offered, which was thereupon allowed, and on the next day an order was taken that the case stand for trial at the succeeding term. With the petition thus amended the plaintiff subsequently presented to the judge in vacation an application to make effective a previous order in reference to the appointment of a receiver. On this hearing the defendants insisted that the amendment taken did not comply with the directions given hy this court, and therefore that an unconditional affirmance and a dismissal of the suit followed. They except to the order appointing a receiver under what the ice company claims was an equitable petition no longer in court.

1. Where a judgment is affirmed with directions, it may frequently be necessary for the lower court to construe such directions. In that event* the judgment of the lower court stands upon the footing of any other order passed in the cause. If it is erroneous, it is subject to correction by appropriate proceedings, but “ the failure of the lower court on remand to follow the order of the appellate court does not render the action of the lower court void.” 13 Enc. Pl. & Pr. 848; Willis v. Felton, 119 Ga. 634. If, therefore, striking the names of Hill and the other persons nam?d' as defendants in their individual capacity and retaining them in their capacity as directors and stockholders of the company was not a compliance with the direction given, it was an erroneous and not a void judgment. The case still remained in court. This is not only a general rule, but such result was peculiarly appropriate here, where the ice company’s attorneys stated that they had no objection to the amendment.

2. Certainly a fast writ will not lie to the order permitting the petition to be amended. If the exception to the order allowing the amendment and retaining the ease be to a ruling which, as claimed by the defendant, would have been final, the bill of exceptions should have’ been made returnable to the next term of this court. Civil Code, § 5526.

*3. If we consider it as a fast bill of exceptions assigning error on the order appointing a receiver, it is sufficient to say that the court had already passed upon the necessity of the appointment of a receiver; that the ice company had not excepted thereto; that it had given a bond; that it had recognized that the bond was probably defective or needed strengthening; and the company has no cause to complain of the continued opportunity to avoid a receivership by giving proper security. The record suggests nothing which indicates error on the part of the court in this regard.

Nor does the cross-bill of the plaintiff show any reason for interfering with the judgment of the court in allowing the ice company to give the bond in lieu of having the property placed in the hands of a receiver. In the first place, Sims applied for such appointment when his suit was originally begun. Palmer was appointed receiver if within a time specified the defendants failed to execute the bond required. There was no exception to the terms of that order, which practically remained in abeyance because subsequently the case was dismissed on general demurrer. On the return of the remittitur and the filing of the amendment retaining the case in court the existing order as to the receivership or bond became fully effective. The plaintiff was bound by the state of the record, and was not entitled to more than good security. A receivership is not intended to be better than an action of ejectment or trover, so as to take property from a defendant claiming title and right of possession. The defendant’s solvency makes the court treat him as a quasi receiver, the property in such cases being regarded as in safe hands. Huggins v. Huggins, 117 Ga. 160. “Receivers are not appointed as matter of right, but to preserve rights.” Id. 152 (6). And the reluctance of the court on interlocutory orders to interfere with the possession of property is such that in most cases it regards the giving of a good and solvent bond as meeting the equities of the case as fully as would the change of possession on the appointment of a receiver.

" Judgment on the main and cross-bill of exceptions affirmed.

All the Justices concur.