116 Ga. 722 | Ga. | 1902
On the 27th of November, 1901, C. B. Henderson in his own right, and as next friend of L. F. and J. M. Henderson, minors, filed in the superior court of Pike county an equitable petition against J. J. and W. T. Rogers, Mrs. S. R. Henderson, and Mrs. Lillie Farnum, in which, after making certain allegations, they prayed for equitable relief, the grant of an injunction, and the appointment of a receiver to take charge of the estate of the principal defendant, J. J. Rogers; and on the 5tbof March, 1902, the judge of the superior court granted an order restraining Rogers from disposing of his property or creating any liens thereon, and appointed Stephens as temporary receiver to take charge of and hold the property and assets of J. J. Rogers until the further order of the court; and a rule nisi was also issued calling on Rogers on a day named to show cause why the injunction should not be granted and a receiver appointed as prayed for. Pending this condition of the case, on March 20, 1902, a petition in involuntary bankruptcy was filed against Rogers at the instance of his creditors, and on April 5 thereafter he was duly adjudicated a bankrupt in accordance with the terms of the bankrupt act. On April 28, 1902, J. W. Hanson was duly and legally appointed trustee for the estate of said bankrupt, and duly qualified as such. On May 19,1902, the trustee was authorized, by an order passed by the
1. Upon the call of the case in this court a motion was made by attorneys for the defendant in error to dismiss the bill of exceptions, for the reason that “the grounds of exceptions in said bill being exceptions to the order of the court below refusing- to dissolve injunction and receivership, the same should have been certified within twenty days as a fast bill of exceptions.” There is no merit in this motion to dismiss. Civil Code, § 5540. “A ‘fast’ writ of error will not lie to a refusal to dissolve an injunction.” Smith v. Willis, 105 Ga. 840, and cit.
2. It appears from the evidence of Stephens, the temporary receiver, that, while he had in his hands a large amount of property belonging to the estate of Rogers, which he had received by virtue of his appointment in the State court, his total cash receipts had been $251.63 and his disbursements $208.24, and that there remained in his hands the sum of $43.39. The petition to the judge of the superior court, asking for an allowance of fees for the attorneys in the State court and for the temporary receiver, contained a prayer that an order be passed fixing the fees of said attorneys and receiver, and that the same be paid out of the assets of the estate before they were delivered to the trustee; and it was under these prayers and the evidence as to the value of the services of each that the judge made and passed the order complained of. It will be noted that this order, in effect, directs the transfer of the assets of the bankrupt to the trustee only on payment of the sums named in the order. We are of opinion that the court erred in the passage of the order to which exceptions are taken. It was admitted that the only fund in the hands of the receiver was $43.39, and the only way in which the additional sum ordered to be paid could be raised was by the sale of sufficient assets in the hands of the temporary receiver. But at the time the order was passed title to these assets had vested in the trustee in bankruptcy. By section
In the case of Wilson v. Parr, 115 Ga. 629, it was ruled hy this court that it was not erroneous for a superior court, which had appointed a receiver to take charge of and administer the assets of a firm which had subsequently been adjudicated a bankrupt, to grant an application that the receiver deliver those assets to the trustee in bankruptcy; and it was there further ruled that the State courts might and should first charge the assets so delivered with the payment of the costs and expenses incurred in bringing the same into court, before requiring delivery to be made to the trustee. But under the facts of the case there presented it appeared that the assets of the bankrupt had, by proper orders of the superior court, been reduced to cash and the fund brought into the superior court for distribution, and the property which was asked to be turned over was money. Following the well-established rule, founded upon principles of justice and right, the proposition was recognized that this money in the hands of a receiver, which had arisen from the disposition of the property in his hands by orders of the court, should be first charged with the expenses of converting the assets into cash, that these charges amounted to proper expenses for such services, and that the fund should be diminished by an allowance of these proper charges in the way of costs; but, so far as we know, it has never been ruled that property of a duly adjudicated bankrupt, in the hands of a temporary receiver in a State court, shall or can be made subject to sale by the State court for the purpose of liquidating claims of the receiver for fees, especially
Judgment reversed.