173 Ga. 644 | Ga. | 1931
On November 14, 1929, Mary L. Dickson executed and delivered to Alice Hutchinson seven notes dated November 14,
On February 2,1931, Mrs. Hutchinson filed her petition in which she recited the institution of the suit on said notes, that a part of the real estate embraced in the above security deeds consisted of a farm of 103.56 acres, that Mrs. Dickson had abandoned said farm and had caused the fire-insurance policy on the dwelling thereon to be canceled, and that said farm was being allowed to remain idle. She prayed that pending the outcome of said suit a receiver be appointed to insure the dwelling on said farm and to rent the same. This petition for a receiver was withdrawn by Mrs. Hutchinson on February 7, 1931. Thereafter and on the same day Mrs. Hutchinson brought “her ancillary petition for receiver” against Mrs. Dickson. This petition was based upon the same grounds as those embraced in her dismissed petition, and was verified by the affidavit of the attorney for Mrs. Hutchinson, to the best of his knowledge and belief. Mrs. Dickson filed her special plea in abatement, upon the ground that the costs which had accrued in the petition first filed, and dismissed, had not been paid. On a hearing the defendant introduced evidence establishing the truth of the allegation that these costs had not been paid. The judge dismissed the plea in abatment, upon the ground that it was insuffi
On a hearing as to receivership the defendant introduced her own affidavit sustaining the allegations of her answer. Mrs. Hutchinson introduced her affidavit denying rescission of the contract of purchase and denying the allegations in the answer of Mrs. Dickson. The defendant urged certain objections to admission of affidavits tendered by the plaintiff, but it is not necessary to consider these objections in reaching a correct decision of this ease. The judge passed an order making the receivership permanent, directing the receiver to take possession of the farm, to have the dwelling-house insured, and to collect the rents of the farm pending the suit.
To this judgment the defendant excepted on grounds that are sufficiently shown hereinafter.
Did the judge err in dismissing the plea in abatement of the ancillary petition for the appointment of a receiver? Where a plaintiff voluntarily dismisses his suit, he may recommence the same on the payment of costs. Civil Code (1910), § 5625. Where a plaintiff voluntarily dismisses his suit, and desires to recommence the same, he can do so without the payment of costs, if he will malee and file, with his petition, summons, or other proceeding, an affidavit that he is advised and believes that he has a good cause for recommencing his suit, and that owing to his
It is true that the first petition for a receiver had one feature of a plenary suit. The plaintiff therein prayed for process, and process was attached. Still we do not think that this first petition for a receiver was a suit within the meaning of section 5625. It was a mere proceeding in which the plaintiff sought relief in aid of her plenary suit. . Clearly the second petition for receiver was in no sense a suit. It purported to be an amendment to the original suit. It was clearly an ancillary proceeding in aid of the relief prayed in the original suit. The first petition for receiver not being a suit within the meaning of the code sections with' which we have been dealing, its dismissal would not prohibit the plaintiff from filing an amendment to her original suit seeking the appointment of a receiver. So the trial judge did not err in dismissing the plea in abatement.
On the merits, there is a conclusive reason why the judge erred in granting a receiver in this ease. The defendant, according to the contention of the plaintiff, is indebted to the latter in the principal sum of $1,700, with interest, which is secured by deeds to real estate. In her suit upon these notes she seeks a general judgment against the defendant and the establishment of special liens upon the lands embraced in the deeds to secure this indebtedness. The defendant is a resident of the county in which the suit is brought and in which these lands are located. There is no allegation that’ the defendant is insolvent, and no allegation that the plaintiff will be unable to collect the amount of any judgment, which she may recover on these notes, out of the lands embraced in these security deeds. If she is not able to do so, there is no allegation that she can not collect the amount out of other property of the defendant. There is no allegation that the preservation of the rents of the farm property embraced in one of these security
It does not appear that the defendant entered into any covenant with the plaintiff to keep the buildings on the premises embraced in the security deed insured. In the absence of such covenant the defendant would not be under an obligation to keep the buildings on these lands insured for the benefit of the plaintiff. The fact that the dwelling on the farm is uninsured, and the possibility of its destruction by fire, does not constitute such a manifest danger of loss of the property as would warrant the trial judge to appoint a receiver to take charge of the same, and im
Judgment reversed.