119 Ga. 316 | Ga. | 1904
In the view which we take of this case, it is nob necessary to determine all the questions raised in the court below and presented here by the bill of exceptions; nor to state all the facts which are contained in the voluminous record. A full statement of the facts leading up to the present litigation will be found in the report which precedes the opinion in the case of Tindall v. Nisbet, 113 Ga. 1114. The main and controlling question in the case can be reached and decided without passing upon some of the minor questions made in the trial court, and by leaving unconsidered a considerable portion of the evidence for the plaintiff which was admitted over objections of the defendant who appears as the plaintiff in error here, the consideration thereof being rendered unnecessary by an agreed statement of facts which was introduced in evidence. The facts shown by the record which we deem necessary to an understanding of the decision we now make are as follows: On January 9, 1894, H. C. Tindall was duly appointed permanent receiver for the Macon Hardware Company. In the order of appointment he was required to make and file in the office of the clerk of the superior court of Bibb county a good and sufficient bond, in the sum of $25,000, conditioned for the faithful performance of his duties as receiver under the order and such other orders as might be passed in the case, the bond to be approved by such clerk. The order of appointment further provided that the receiver should deposit all moneys coming into his hands in four banks located in the city of Macon, viz., the Exchange Bank, the American National Bank, the Central Georgia Bank, and the Macon Savings Bank, the deposits to be divided among these banks, as near as might be, in the proportion that the amount due by the Macon Hardware Company to each bank bore to the whole sum due by it to all of them, provided that the banks would pay interest upon such deposits, if left for the space of six months, at the rate of five per cent, per annum; and that no checks should be drawn against such deposits except in the name of the receiver and countersigned by the judge presiding of the court, except that checks drawn for expenses might be drawn without being so coun
In its answer the Fidelity Company denied the right and authority of the plaintiff to bring the suit, denied that the court had lawfully decreed' that the plaintiff was entitled to recover any funds in the hands of the receiver, and denied that there were any such funds in the hands of the receiver at the date of the alleged decree of the court and at the time of the filing of the suit against the receiver. The answer further averred that there had been no accounting properly required of the receiver for the alleged fund, and that there had been no adjudication upon any proper proceedings of any amount or balance as against the receiver, and, for such reason, no suit could be legally brought against the Fidelity Company upon the bond on account of any alleged default of the receiver. It also denied that there had been any breach of the bond. It further averred that the receiver deposited the funds which came into his hands in the Exchange Bank, the American National Bank, the Central Georgia Bank, and the Macon Savings Bank, all of the city of Macon, dividing his deposits amongst said banks, as near as might be, in the proportions which the amount due by the Macon Hardware Company bore to the whole sum due by it to all of such banks, at interest at five per cent, per annum, etc.; that the order of the court expressly provided and commanded that no check should be drawn against such deposits ex
By an amendment to its original answer, the Fidelity Company alleged that the money for which the suit was brought was deposited with and loaned to the Exchange Bank, the American National Bank, and the Central Georgia Bank, pursuant to the orders of Bibb superior court, and upon the terms of such orders; that this money had never been withdrawn or collected from said
The consideration and determination of this case are greatly simplified by this agreement, made in open'court. In view of the admissions made by the Fidelity Company in this agreement, some of the questions raised in the court below and brought to this court for decision become immaterial. Here is an agreement which, in the light of the decision rendered by this court in Tindall v. Nisbet, 113 Ga. 1114, absolutely settles the main and controlling question made in the case. That question was, whether the money which Tindall, as receiver, drew from the Exchange Bank, the Central Georgia Bank, and the American National Bank, three of the banks in which he had been required, by order of the court, to deposit the receivership funds, upon checks signed by him as receiver, but not countersigned by the judge of the court, nor allowed by any special order of the court, and not for expenses, was part of the trust fund committed to his keeping, or merely funds of these banks paid out by them to Tindall, not as receiver, but as a private individual. This was the great subject of dispute in the case, the Fidelity Company having set up the defense that as the. orders of the court provided that no money, except for expenses, should be drawn by the receiver from the funds deposited in bank, without the check for such money being countersigned by the judge, and as the banks had either actual or constructive notice of these orders, the money which Tindall obtained from them upon checks drawn by him as receiver, not for expenses and not countersigned by the judge, was no part of the receivership funds, and therefore, although Tindall appropriated it to his own use and failed to account for it, he committed no breach of his bond as receiver in so doing, and hence his surety on such bond was not liable. This very question, except as to the effect of its decision upon the liability of, the surety on the receiver’s bond, was made by Tindall in the above-cited case, and was there decided adversely to him and to the contention of the Fidelity Company in the present case. It was there expressly decided: “If a receiver has been directed by the court to deposit a fund arising from the sale of property of the debtor, in banks, subject to be withdrawn only on his check when the same has been countersigned by the judge' presiding in the court which appointed him, and, in violation,of;
It will be seen, at once, that the decision was by no means confined to the question whether or not Tindall could be attached and punished for contempt in disobeying the orders of the court in reference to the manner in which the money should be withdrawn by him from the banks, but it expressly determined that he could also be attached and punished for contempt for his failure or refusal, when so ordered, to pay into court the funds which he had withdrawn from the banks upon checks not countersigned by the judge, and appropriated to his own use. This latter question was the main one in the case, for the trial judge had “ made the rule absolute, requiring [Tindall] to pay at once to the clerk the sum [of $6,021.17]; and ordered that he be committed to jail for contempt of court, and remain in custody until he can show that he has purged himself of the contempt, by repaying the fund adjudged to have been misappropriated by him, and that he has been sufficiently punished, or by showing that he has been sufficiently punished and is unable, by reason of his poverty, to repay said amount.” Ib. 1126. So, it is perfectly clear that in that case it was decided, both by the trial court and by this court, that the money which Tindall withdrew from the banks, upon cheeks signed by himself, as receiver, and not countersigned by the judge, and not for expenses, was a portion of the receivership funds. He could not have been punished for contempt of the court because he failed to pay into court money which he had obtained from these banks, unless such money, when received by him from the banks, was received in his capacity as receiver of the Macon Hardware Company and was receivership funds. It matters not whether the surety on the receiver’s bond is or is not bound by the judgment rendered in that case. "We may grant the contention of the Fidelity Company, so ably and forcibly presented here
Judgment affirmed.