Dennard v. Farmers & Merchants Bank

149 Ga. 590 | Ga. | 1919

George, J.

(After stating the foregoing facts..) As we construe the interlocutory order, the judge appointed a receiver as prayed; enjoined “each and all of the defendants from further selling, encumbering, removing, transferring, or otherwise altering the existing status of any property, 'money, or bank account now owned or controlled by them;” ordered the writ of ne exeat to issue to prevent the defendants, C. S. Dennard, Mrs. Allie Dennard, L. V. Dennard, and Mrs. Eosa Lee Dennard, from departing from the State and from removing any óf their property beyond the jurisdictional limits of the State; directed the receiver to demand of the Dennards the $6,000 on deposit with the plaintiff bank/ and required the said named defendants to deliver the said sum of money to the receiver on demand. With respect to the storehouse and lot owned'by C. S. and L. Y. Dennard, and the residence lot in the town of Coolidge, conveyed by L. V. Dennard to' his wife, Mrs. Eosa Lee Dennard, the case made by the pleadings and evidence is only the common one of a creditor without a lien or claim of lien, and is within the rule contained in section 5495 of the Civil Code of 1910, which provides: “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.” See also Ayers v. Claridy, 149 Ga. 498 (101 S. E. 292); Cooleewahee Co. v. Sparks, 148 Ga. 211 (96 S. E. 131). In so far as all the defendants, including Mrs. Allie Dennard; Mrs. Eosa Lee Dennard, E. M. Kennington, and Mrs. E. M. Kennington,. were enjoined, and in so far as any of the defendants were enjoined generally from selling, encumbering, or otherwise altering the existing status of any property, money, or bank account owned or controlled by them, the case is likewise within the general rule above announced. No reason appears why any defendant should have been enjoined from disposing of his property generally. Certainly the general injunction against Mr. and Mrs. Kennington was unauthorized. The fact that the main defendants were preparing to depart from the State or to remove their property beyond the jurisdictional limits of the State affords no ground for general injunction. Tucker v. Murphy, 114 Ga. 662 (40 S. E. 836). According to the allegations and the proof, the court was authorized to find that the $6,000 referred to in the petition was segregated from the general account of C. S. and L. V. Dennard, and placed on special deposit with the plaintiff bank, for the purpose of securing an overdraft with the bank. The judge was also authorized to find that this fund was fraudulently obtained from the bank as alleged in the petition. With respect to this fund, or the money into which it had been converted, we are of the opinion that the plaintiff was entitled to appropriate and consistent relief. It will be noted that the judge not only appointed a receiver with specific direction to take charge of this particular fund, but also ordered the writ of ne exeat to issue to prevent the defendants from departing from the State and from removing any of their property from beyond the jurisdictional limits of the State. The main defendants were required to deliver the $6,000 referred to in the petition to the receiver. A refusal to comply with the order of the court would of course subject the defendants to punishment for contempt. At the same time, the writ of ne exeat was issued requiring the main defendants and their wives to give bond for their personal appearance and for the forthcoming of all their property “to abide by the order and direction of the court,” or, in default thereof, to be imprisoned. As was said by Hall, J., in Bleyer v. Blum, 70 Ga. 558, 564, “The incongruity of appointing a receiver and ordering the property to be turned over to him, and at the same time requiring bond from the defendant for its forthcoming, is apparent.” See also Old Hickory Distilling Co. v. Bleyer, 74 Ga. 201, and Tumlin v. Vanhorn, 77 Ga. 315 (3), 321 (3 S. E. 264). As indicated, the judgment appointing a receiver to take charge of the specific fund formerly on special deposit with the plaintiff bank might be affirmed, with directions, as was done in the case of Bleyer v. Blum, supra. Under the peculiar facts of this case we believe the better practice to be to reverse the judgment generally, and to leave the judge free on rehearing to grant the plaintiff such appropriate and consistent relief as the evidence may justify. In no event was the plaintiff, under the pleadings and evidence in the present record, entitled to an injunction against all the defendants, ot to general injunction against any of the defendants; nor was it entitled both to the issuance of the writ of ne exeat and the appointment of a receiver with respect to the specific fund formerly on deposit with the plaintiff.

Judgment reversed.

All the Justices concur, except Fish, C. J., absent.