164 Ga. 744 | Ga. | 1927
Lead Opinion
As appears from the record, Callahan owned a house and lot in the City of Atlanta, on which he obtained a loan of $2000 from the City Savings Bank. He sold this house-to one Abercrombie, subject to this loan, and Abercrombie in turn sold
We are of the opinion that the court erred in the appointment of a receiver. Regardless of the fact that the judge, did not pass upon the demurrer interposed to the petition when the same was read, but proceeded, on the contrary, to require the introduction of evidence as to the facts stated in the petition for a receiver, the
But should we be mistaken as to this, the court should not have entertained or passed upon the intervention or have appointed a receiver on August 13, 1926, after the consolidated cases had been transmitted to this court for adjudication on the bill of exceptions certified by Hon. John D. Humphries on July 3. Courts of review have never been inclined to favor the practice of trying-cases by piecemeal and in dissevered fragments, and for that reason it has been uniformly held that when “the bill of exceptions is certified by the trial judge, the case is no longer pending in his court, and he is wholly without authority to pass any order or do any act with reference to the same.” Georgia etc. R. Co. v. Lasseter, 122 Ga. 679, 684 (51 S. E. 15). “As a general rule, when an appeal or writ of error is perfected the case becomes one for the cognizance of the appellate court, and for that court alone; the authority of the lower court is terminated, and it can not proceed in the cause, at least as to the subject-matter of the appeal or writ, until the appeal or writ of error is heard and determined.” 3 C. J. 1255, § 1369; Michigan Ins. Bank v. Eldred, 143 U. S. 293 (12 Sup. Ct. 450, 36 L. ed. 162). The trial of the applica
Judgment reversed.
Dissenting Opinion
I dissent from the ruling of the majority that the court below erred in appointing a receiver for the premises in dispute, at the instance of Callahan, upon the ground that the court had lost jurisdiction of the case by reason of the fact that a bill of exceptions had been sued out and was pending in the Court of Appeals at the time the receiver was appointed. An execution in favor of the City Savings Bank against Callahan was levied upon certain realty as the property of the defendant in execution, and to this property Mrs. Estes filed a claim. Subsequently the City Savings Bank filed an equitable petition against Callahan and Mrs. Estes, in which it alleged that Callahan had borrowed from it the sum of $2000, and had given to petitioner a deed to, the land.levied upon, to secure said loan; that Callahan had conveyed said property to Abercrombie, who assumed, as a part of its purchase-money, the debt due. by Callahan to petitioner; that Abercrombie executed to Callahan, subject to the deed of petitioner,, a deed to these premises, to secure the balance of the purchase-money which he was to pay Callahan for these premises, amounting to $1300; that Abercrombie conveyed this property to Mrs. Estes by deed in which it was recited that it was made subject to the deeds of petitioner and of Callahan to these premises; that Mrs. Estes had filed a claim to this property; that she was not paying the notes which she had executed to Callahan for the purchase of this property; that she was living on the premises without pay-, ing anything whatsoever; that her claim was filed in forma pauperis'; that she had demolished certain portions of the house on the land levied upon; and that the house was easily worth $35 per month for rent. Petitioner prayed for a receiver. Mrs. Estes demurred to this petition, upon various grounds, which demurrer does not appear to have been passed upon by the court:
This petition was returnable to the March term, 1926, of Fulton superior court. Mrs. Estes moved the court to consolidate the above claim and equitable petition; and on April 1, 1926, an order was passed consolidating the two cases, making Callahan and Abercrombie parties thereto, requiring that they be served at once, and requiring the plaintiff to show cause on the trial why the prayers of the cross-petition of Mrs. Estes should not be granted, and that all parties set up their equities in the consolidated cases. Abercrombie and Callahan were served on April 12, 1926, with copies of the above proceedings. This made the May term, 1926, of the court, which began on May 3, 1926, the appearance term of the consolidated cause, as to -Callahan and Abercrombie. They were entitled to the same time within which to prepare for trial as if they had been original parties to the cause, unless they had eonsented to the trial at- the first term. Civil Code (1910), § 5602. The consolidated cause was'called for trial on the first day of the May term, 1926. At that time Callahan and Abercrombie had not appeared or pleaded, and did not consent for the case to be
On July 22, 1926, Callahan filed his petition, in the nature of an answer, in the consolidated cause. He therein sets up his sale of the premises in dispute, on September 1, 1923, to Abercrombie,, the consideration of the sale being the assumption by Abercrombie of his indebtedness to the City Savings Bank, secured by his deed, and the payment by Abercrombie to him of $1300, secured by Abercrombie’s deed to him, subject to his deed to the bank, the sale of said property on the same day by Abercrombie to Mrs. Estes by warranty deed, the same reciting that it was made subject to the security deeds held by the City Savings Bank and by him, and Abercrombie’s notes to him for the balance of said purchase-money, in the sum of $25 each, payable monthly; that for several months he rented the premises from Mrs. Estes, paying her $50 per month therefor; that from this rent sixteen of said notes were principally taken up, but that none of said, notes had been paid since January 1, 1925, during which time Mrs. Estes has had possession and use of the premises; that she had failed to pay the judgment and fi. fa. in favor of the City Savings Bank against him; that he was liable to the City Savings Bank on its judgment against him for the above loan, which should have been paid by Mrs. Estes; that to compel him to pay off said judgment with Mrs. Estes in possession of the property would be a hardship on him,' in violation of the intent of the parties when the property was'sold to her; that he had sued on his notes against Abercrombie to judgment, and the same is a general lien upon the premises in dispute,
1. I will deal with the first ground upon which the majority put their judgment reversing the judgment appointing a receiver, although there is no corresponding headnote embodying the principle therein announced, and although the court seems to put its judgment of reversal upon the lack of jurisdiction of the case by the court below at the time the appointment was made. In her answer .to the petition brought by the City Savings Bank, in which it sought to have a receiver appointed for this property, the claimant, by way of cross-action, sought to have and succeeded in having Callahan and Abercrombie made parties thereto. She set up the facts hereinbefore recited, and prayed that all the claims and equities of the City Savings Bank, and of Callahan and Abercrombie, to the premises in dispute be fixed and determined by a decree of the court under her cross-action. Furthermore, upon her motion, the claim case and the equitable petition of the bank were
2. Hnder the circumstances, was the superior court of Eulton County without jurisdiction to appoint a receiver, because the case was pending upon a bill of exceptions in the Court of Appeals ? In view of numerous decisions of this court, this question should be answered in the negative. In May v. Printup, 59 Ga. 128, a suit was brought in the circuit court of the United States. An appeal was taken from the judgment of the circuit court to the Supreme Court of the United States. Thereafter the circuit court appointed a receiver to take possession of the property in dispute and preserve it until the termination of the case in the Supreme Court. The question arose whether the judgment of the circuit court, ap
The authorities cited in the opinion of the majority do not sustain the conclusion reached by them. The decision in Georgia etc. Ry. Co. v. Lasseter (supra), states the .general rule, which is that when an appeal or writ of error is'perfected, the case'becomes one for the cognizance of the appellate court alone, that the authority of the lower court is terminated,-and that it can .-not proceed in the ease as to the subject-matter of the appeal or writ, until the appeal or writ of error is heard and determined. ' The subject-matter involved in the instant case relates solely to the subject-matter of the claim, and not-to the subject-matter involved in the equity case which 'has been consolidated with the claim. The error assigned in the former bill of exceptions in this case is
During the discussion of this case, while it was being considered in bank, the suggestion was made that a separate plenary suit in equity might be necessary in order for the applicant to obtain the appointment of a receiver. In some cases such a proceeding might be necessary; but under the facts of this case there was no necessity for the filing of an independent suit by the applicant. He had been brought into court on a cross-petition filed by the claimant in the equity suit brought by the plaintiff in fi. fa. in aid of his levy. While the claim case was consolidated with the equity case, none of the equitable rights of the parties thereto were determined by the judgment rendered therein. No rights of Callahan, either legal' or equitable, were passed upon in the trial. This trial took place at the first term after he was made a party to the equity proceeding, and was had without his consent. The court was without jurisdiction, as to him, to determine the equity cause without his consent. This left the equity case, to which Callahan had been made a party upon the motion of the claimant, pending in the court below; and as the claimant in that case obtained an order requir
For these reasons I can not agree to the opinion of the majority in this case. I am authorized to say that Mr. Justice Gilbert concurs in this dissent.