181 Ga. 274 | Ga. | 1935
The judgment to be reviewed in this case is the refusal of the court to set aside a judgment confirming a receivers’ sale. After careful consideration of the voluminous record and of the several questions discussed in the briefs, we have reached the conclusion that the case is controlled by a very few plain and familiar principles, and that under them the judgment must be affirmed, regardless of any opinion which might be entertained by this court as to other questions argued. In this view, there is much in the record which may be treated as immaterial and omitted from this statement.
The Atlanta Trust Company, as the trustee under a security deed conveying property situated in Atlanta which may be described in brief as the Hurt Building, filed a petition in the superior court of Fulton County to foreclose the deed as an equitable mortgage, the deed having been made to secure an issue of bonds of which there was past due and unpaid an amount in excess of $3,000,000 at the time the suit was filed. To this action certain pleas were filed, and proceedings were also instituted in the Federal Court. Holders of all but a relatively small portion of the bonds confided their respective interests to two committees, called the bondholders’ committees. Pending the suits these committees entered into a contract with D. Frank' Mennis, one purpose of which, among others, was to end all resistance to the foreclosure of the security or trust deed, and to bring about an early sale of the property by receivers theretofore appointed by the superior court. Mennis agreed to procure the dismissal of all adversary proceedings, and to cause to be conveyed to the receivers certain property rights appurtenant to the Hurt Building in order that the same might be sold in connection therewith. The contract anticipated that at the 'instance of Mennis a new corporation would be created, to sxtceeed automatically, upon its organization, to all the rights granted to Mennis under the contract. The proposed corporation was referred to by the parties as “the purchaser corporation,” a designation appropriate to the thought that it might bid and become the purchaser at thé receivers’ sale. The' committees promised that upon the dismissal of the antagonistic proceedings and the execution of the acts to be performed by Mennis, they would in the fol
Mennis procured dismissal of all proceedings, wherever filed, in opposition to the foreclosure of the security deed, including dismissal of a writ of error pending in the Supreme Court of Georgia and having as its purpose the reversal of a decree of foreclosure theretofore entered in the superior court of Fulton County, to wit, on March 22, 1934. Mennis also caused to be transferred to the receivers the property rights appurtenant to the Hurt Building and otherwise executed the affirmative covenants undertaken by him in his contract with the two committees. The way being thus apparently clear for such action, the superior court on January 28, 1935, passed an order directing the receivers to sell the property known as the Hurt Building to the highest bidder for cash on March 5, 1935, after prescribed advertisement. The order required a deposit of $25,000 from each person desiring to qualify as a bidder, and contained the following additional provisions: “The court may reject any or all bids. If a purchaser whose bid is confirmed by this court does not complete payment of the purchase-price in 90 days after such confirmation or within such additional time as may be granted by this court, then the deposit made by such bidder shall be forfeited as damages for his failure to complete. Such
“On this the 6th day of March, 1935, there came on before the court the hearing with respect to the report of the receivers as to the sale conducted on the previous day under order of the court, this hearing being provided for by this court in its order of January 28, 1935, and being for the purposes specified in said order. After discussion, all parties at interest, including all qualified bidders under the receivers’ report this day filed, being present before the court and consenting thereto; it is now ordered that the hearing set for this day by the order of January 28, 1935, is hereby set for ten o’clock a. m. Tuesday, March 19, 1935, and that all the terms and provisions of the order of January 28, 1935, relative to the hearing provided therefor as of to-day, shall in every respect apply to the hearing to be held on March 19, 1935, or any adjournment thereof, including the provision that further bids may be made by any person who qualified at the sale, or then qualifies as a bidder. This the 6th day of March, 1935.”
*280 “On this the 19th day of March, 1935, at ten o’clock a. m., pursuant to previous orders of court of record herein, this case came on to be heard for the purpose of receiving further bids for the properties heretofore offered for sale by the receivers and for the purpose of acting upon the question of confirming the sale to be made hereunder. Upon representations made to the court it was ■announced by the court that if any sale resulted the confirmation thereof would be subject to the condition that-the successful bidder could withdraw and take down his deposit without liability in any one of the following contingencies, to wit: 1. Should the sale not be confirmed within fifteen days from the date hereof. 2. Should the successful bidder be unable to obtain from the Atlanta Title & Trust Company an insurance of the title to the properties in the usual form of title-insurance policy written by that company at its usual rates, at the purchaser’s expense. 3. Should any bidder have arrangements to finance all or a part of his bid through a mortgage from an insurance company and designate such insurance company at his bidding, and the regular counsel for the insurance company refuse to approve the title so that the said loan could be completed. The confirmation hereinafter ordered is hereby expressly made subject to the conditions just above recited, as fully as if the same were repeated hereinafter. Thereupon Investment Securities Corporation of Delaware, represented by Mr. R. W. Courts Jr., announced that its bid, if accepted, would be financed in part by an insurance company loan on the property, and designated the New York Life Insurance Company as the company from which it intended to obtain said loan. All parties at interest, including Hurt Building Inc., by its attorney, Mr. John L. Westmoreland, were present throughout the proceedings hereinbefore and hereinafter recited. Thereupon the receivers, through direction of the court, and in open court, called for further bids for the said properties, the said properties being more particularly described in the orders of record herein directing the sale of the properties in the hands of the receivers and including the Hurt Building and the two tracts of land which together are known as the triangle, and the interest of the lessor corporation in all existing leases. At the conclusion of the bidding the highest and best bid received by the court was a bid of Investment Securities Corporation, a corporation under the laws of the State of*281 Delaware, for the sum of $2,281,000 cash. Counsel for certain intervenors, to wit, Christian Women’s Benevolent Association et al., as shown in their said intervention of record, filed objections to the confirmation of the said sale to Investment Securities Corporation, which said objections are hereby overruled. No other person, firm, or corporation interposed any objection to the confirmation of the sale. The court being of the opinion that the sale is one which should be confirmed in the best interests of the estate being administered by the court, and the court having ascertained that the bid of Investment Securities Corporation was the highest and best bid received for the said properties, it is thereupon considered, ordered, and decreed as follows: The court does hereby, upon the conditions hereinbefore provided, confirm the sale of the properties aforesaid to Investment Securities Corporation aforesaid for the price of $2,281,000, to be paid in cash pursuant to previous orders.of the court. The receivers are directed, in compliance with said orders and with this order, to make a good and sufficient conveyance to the said purchaser of all of said properties upon the receipt from the purchaser of the payment in cash of the purchase-price. The receivers are directed to make report to the court of their actions hereunder, for such further orders and directions as the court may make.”
No further proceedings were had until April 3, 1935, when Hurt Building Inc., through its attorneys, filed a petition in the same cause, praying that the judgment, of confirmation be vacated and set aside for reasons alleged. To a judgment refusing this petition Hurt Building Inc. excepted, and brought the case to this court. The petition alleged substantially all that is stated above, and made the following contentions: (1) The bid submitted by Mr. Courts for Investment Securities Corporation and its acceptance on the new conditions named virtually gave to “said purported bidder an option to purchase said property on the conditions named in its said bid,” and the judgment “affirming the action of the receivers in accepting this conditional bid was illegal and void.” (2) Hurt Building Inc. submitted the highest and best bid, and the same should have been accepted and the sale confirmed accordingly. (3) The statement in the decree of confirmation that the bid of Investment Securities Corporation was the highest and best received is incorrect, because the bid submitted
The proceeding instituted in the superior court by Hurt Building Inc., though styled a petition, was not an independent suit in equity to set aside a judgment because of fraud, accident, or mistake, but was a motion made in the cause, and during the term, to set aside the judgment. “A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside.” Code of 1933, § 110-501. An order confirming or refusing to confirm a judicial sale, if unexcepted to, is a final and conclusive judgment to the same extent as any other adjudication by a court of competent jurisdiction. Southern Cotton Mills v. Ragan, 138 Ga. 504 (2) (75 S. E. 611); Lowe v. Guice, 69 Ala. 80, 83; 16 R. C. L. 83, 85, 99. In Pledger v. Bank of Lyerly, 157 Ga. 229 (121 S. E. 228), the sale was not confirmed, and a judgment refusing confirmation was the subject-matter of the writ of error. In Moore v. Kelly, 109 Ga. 798 (2) (35 S. E. 168), it was held: “While a motion to set aside a judgment is addressed to the sound discretion of the judge, it should not, although made during the term at which the judgment was rendered, be granted unless some meritorious reason be given therefor.” This ruling was repeated in Kellam v. Todd, 114 Ga. 981 (41 S. E. 39); and in the recent case of Cahoon v. Wills, 179 Ga. 195, 197 (175 S. E. 563), it was said: “The rule appears to have been generally adopted in almost all jurisdictions, that the power of control even during the term should be exercised only upon sufficient cause shown and where the matter appeals to an exercise of sound legal discretion. 36 C. J. 207. Such is undoubtedly the established rule in Georgia.” See also Lambert v. Smith, 57 Ga. 25; Phillips v. Taber, 83 Ga. 565 (4) (10 S. E. 270); Murray v. Willoughby, 133 Ga. 514 (66 S. E. 267); Gaines v. Gaines, 169 Ga. 432 (150 S. E. 645); Walker County Fertilizer Co. v. Napier, 40 Ga. App. 387 (149 S. E. 705); Coker v. Eison, 40 Ga. App. 835 (4) (151 S. E. 682). When a party has been afforded an opportunity to be heard, the court can not suspend or
A distinction must be made between bidding and a hearing on confirmation. The pronouncements which are now criticized were made by the judge in connection with the bidding, and not in the matter of confirmation. In legal effect, the case is the same as if the statements had been made by the receivers; and they, instead
In the bill of exceptions error was assigned on the statements made by the judge at the time of the bidding. These assignments were not made upon rulings antecedent to the final judgment, within the meaning of such decisions as Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353 (58 S. E. 1047). As shown above, these statements, if furnishing any ground of complaint, were mere incidents of the bidding, and should have been pressed by way of objection to the entry of a decree in favor of the other bidder. They were in no sense rulings to be assigned as error in the bill of exceptions to review the judgment refusing the motion to set aside the decree. Even if the motion to set aside-the judgment should be considered as containing the elements of an independent suit in equity, the position of the plaintiff in error would not be stronger. “Equity will interfere to set aside a judgment of a court having jurisdiction only where the party had a good defense of which he was entirely ignorant, or where he was prevented from making it by fraud or accident, or the act of the adverse party, unmixed with fraud or negligence on his part.” Code of 1933, § 37-220. See
Nothing said above is intended as an expression as to the rights of the parties under the Mennis contract, or as to the propriety of what occurred at the time of the bidding. In the view which we take of the case, these questions were not opened for consideration by the motion to set aside the judgment. The logical, if not the only proper, procedure in this court was to consider first whether the motion was sufficient to raise these questions; and since we have concluded that it was not, there is nothing more for decision.
Jitdgment affirmed.