175 Ga. 477 | Ga. | 1932
Lead Opinion
(After stating the foregoing facts.)
A motion to dismiss the bill of exceptions was made in this case. The defendant in the equitable petition filed an answer and cross-action. After the lapse of several,terms of court the defendant filed an amendment, asking that certain parties other than the original plaintiffs be made defendants in his cross-action. The court refused to allow the amendment, and refused to make the new parties. The only effect of this judgment was to refuse to allow an amendment to the cross-action of the original defendant. But neither the allowance nor the disallowance of the amendment operated to effect a final disposition of the cause. It appears from the record that after the filing of the original petition, and the filing of the cross-action by Nathan Friedlander, both parties entered into a contract of agreement, wherein it was undertaken to adjust the differences between the parties, in which contract were set out conditions under which the property of Friedlander Brothers was to be divided between Louis Friedlander and his associates, and Nathan Friedlander and an associate, proportionately to the stock ownership of each in the corporation. In this agreement W, J.
The disallowance of this amendment, when that question (which is now merely interlocutory) may be seasonably presented, may become pivotal in the final adjudication of this litigation. In the meantime, however, the present bill of exceptions can not be dismissed for want of proper parties. We know of no ruling under which one who was never at any time a party in the lower court can be a proper party in a court of review. And this would seem to be especially true where the parties sought to be interjected here appeared only fox the purpose of asserting by demurrer that they were not subject to the jurisdiction of the court. The bill of exceptions is not subject to dismissal for lack of proper parties.
As we have held, by the disallowance of the amendment and the refusal to make any new parties the court had left before it only the petition and the answer and cross-petition of the defendant. But
Upon a careful review of the pleadings as affecting the appointment of a receiver in this case, we are satisfied that there was no error in the refusal of the court to appoint a receiver. The contract and agreement which was entered into by Nathan Fried-lander was before the court, and is set out in the record here. No such necessity for the appointment of a receiver appears from the record as would authorize this court to find that the refusal to appoint a receiver was an abuse of the discretion with which the lower court was vested. The general powers of courts in the appointment of receivers are to be found in the Civil Code (1910), §§ 5475, 5476, 5479. Being thus stated in language quite similar, they may sometimes seem to overlap each other. Under these laws, the court, upon a proper showing, might have granted a receiver, as the defendant in his cross-action asks. This court has frequently held that the grant or refusal of a receivership is a matter largely within the discretion of the court, but it is not questioned that the exercise of the right by the chancellor is reviewable by the Supreme Court. So the bill of exceptions in this case is not subject to the motion to dismiss. That being true, permission is granted to the plaintiff in error, if he so desires, to file the copy of the bill of exceptions, with the ruling of the court upon the proposed amendment, as exceptions pendente lite.
Judgment affirmed with direction.
Dissenting Opinion
dissenting. Inasmuch as the bill of exceptions in
Dissenting Opinion
dissenting. 1. The ruling announced in the first headnote states a correct principle of law, but is not applicable to the-case. If a judgment had been entered refusing a receiver, a proper exception thereto in a direct bill of exceptions would have authorized further exceptions to the rulings, as to grant or refusal of amendments to the plea.
2. The ruling announced in the third headnote is not a correct statement of the law. A judgment appointing or refusing to appoint a receiver must be actually entered before there can be an exception to it. If the judge omits to enter judgment, he should be requested to do so; and if he refuses to act, mandamus would be a remedy.