111 Ga. 122 | Ga. | 1900
Coombs & Company filed a petition against Fountain and E. Swindell & Company, in which, after making certain allegations, they prayed, among other things, for the appointment of a receiver to take charge of certain property of Fountain. After a hearing, Harrell was appointed receiver of such property. Subsequently the petition was dismissed by the plaintiffs and the cost paid. Thereafter, and before a discharge of the receiver had been ordered, Mills, for himself and as agent of others, filed a petition against O’Neal, Fountain, and Harrell, receiver, in the court where the receiver had been appointed, praying that the defendants turn over to them a certain sum of money. This petition was subsequently amended by incorporating a prayer that the case of Coombs & Company against Fountain and Swindell be reinstated, and that certain money in the hands of O’Neal be turned over to Harrell, receiver. The petitioner offered evidence of certain attachments and foreclosures of laborers’ liens which had been levied upon the property of Fountain which was originally included in that of
There is no question that the plaintiff may dismiss his action in any court of this State, either in vacation or in term time, where some right of the defendant is .not prejudiced by such dismissal (Smith v. Smith, 101 Ga. 298); but we can not assent to the proposition that on the dismissal of this action the funds necessarily went to Fountain, a defendant to the original petition, from whose estate they were realized, and which are now in the possession of Mr. O’Neal. For the proposition that such a disposition necessarily follows the dismissal, we are referred to the case of Warren v. Bunch, 80 Ga. 124. It will be noted, however, in that case, that the ruling was made on the principle that the court in which the petition was filed, and by which the receiver was appointed, had no jurisdiction. If it had not then all the proceedings taken were absolutely void,
The rule laid down in 17 Enc. PI. & Pr. 847, is that, “after final disposition of the pending suit, the discharge of the receiver is usually a matter of right; but where other interests than those of the parties to the suit, such as the interests of lien-holders, or other creditors, have come into the litigation, a dismissal or other final determination of the cause will not preclude the court from taking any action, even to continuing the
Judgment affirmed, with direction.