187 Ga. 559 | Ga. | 1939
Do the plaintiffs in error have a right of recovery under fire-insurance policies taken out by persons who are mortgagee beneficiaries under a trust deed, for the sole protection of said mortgagee beneficiaries, where a fire loss has occurred thereunder, all the insurance premiums having been paid by said mortgagee beneficiaries, and where a pro-tanto assignment and subrogation agreement is made between said mortgagee beneficiaries and the insurers, upon payment by the insurers to said mortgagee beneficiaries of the fire loss sustained by them and by virtue of said
Counsel for defendants in error contend that even if plaintiffs had any rights they have lost them because they waited too
In Columbus Iron Works v. Sibley, 164 Ga. 121 (137 S. E. 757), the order which was passed on May 22, 1925, limited to July 20, 1925, the time within which creditors might intervene; the order further providing that any claim not so filed within the time so fixed "shall be forever barred and foreclosed from participating in or receiving any share of the assets in the hands of” the receiver. The order also provided that the receiver should publish a notice once a week for two weeks in a newspaper published in the county where the suit was pending. Most of the intervenors were without actual notice of the order or time limit fixed by the order until after it had expired. This court held that the trial court erred in not setting aside the order so far as the intervenors were concerned, all the Justices concurring. Here, as there, the intervenors had no actual notice of the order. The creditors were given two months, lacking two days, in which to file their claims. Here, the time was one month and one week. Whereas in that case most of the intervenors were non-residents of the State, in the instant case all of them were non-residents. There, at the time the interventions were filed, a part of the fund had already been distributed to creditors who had filed their claims within the time limit. Here, none of it had been distributed to creditors. In the case at bar, the order does not, as it did in that case, expressly provide that any claim not filed within the time limit should be forever barred from participating in the assets in the hands of the receiver. In the opinion in the case last referred to, authorities are cited to the effect that a creditor bona fide ignorant of the proceedings had for the distribution of the fund will be allowed to come in and prove his claim against the estate after the time fixed for the filing of his claim.
In 15 C. J. 1437, it is stated: "Although creditors are required by the decree to establish their claims within a time limited, they are not strictly held to the time unless injustice would otherwise be done to other parties;” and in 53 C. J. 237, we find the following pronouncement, which is amply supported by the authorities cited in the notes: "In general, where an order is given for the publi
We are of the opinion that the court erred in holding that relief should be denied intervenors because of their delay.
Judgment reversed.