Kent v. Jefferson Mortgage Co.

188 Ga. 854 | Ga. | 1939

Reid, Chief Justice.

H. II. Kent filed in the superior court a petition seeking to enjoin prosecution of a dispossessory-warrant proceeding instituted against him in the municipal court of Atlanta by the Jefferson Mortgage Company. He set up that the defendant had no title to the property in question, but that the title was in him; and alleged that a certain lease contract executed by him to the defendant was obtained by fraud and should be set aside. On interlocutory hearing, on the motion of the defendant, a receiver was appointed to take charge of the property pending the litigation. Kent filed a motion to dissolve the receivership, on substantially the same facts as set out in his petition for injunction. This motion was denied. Held:

The judgment refusing to dissolve the receivership constituted a mere interlocutory judgment which can not be reviewed by this court on a direct bill of exceptions. Akins v. Mull, 150 Ga. 459, 460 (104 S. E. 209); Foster v. Merchants & Mechanics Banking & Loan Co., 163 Ga. 63 (135 S. E. 405); Eagle Publishing Co. v. Mercer, 154 Ga. 246, 254 (114 S. E. 26); Pennington v. Macon County Bank, 156 Ga. 767 (120 S. E. 107); Cook v. Board of Commissioners of Houston County, 54 Ga. 163; Pace v. Pace, 150 Ga. 666 (104 S. E. 638).

In the order appointing the receiver he was directed to dispossess the plaintiff, “unless rent is paid within five days from this date (at a rate equal to the best rental rate obtainable elsewhere), in advance.” No exception was taken to this judgment. Thereafter the plaintiff defaulted in the payment of the rent, and the court granted to the receiver leave to institute dispossessory-warrant proceedings against the plaintiff. Under the facts of the case this was a mere interlocutory administrative order granted to carry into effect the previous judgment appointing the receiver to seize and manage the property pending the litigation; and it is not such a final judgment as will support a direct bill of exceptions to this court. See Smith v. Johnson, 148 Ga. 660 (97 S. E. 856); Lester v. Wright, 147 Ga. 242 (93 S. E. 406); Gibson v. Motor Finance Co., 37 Ga. App. 392 (140 S. E. 424); Spires v. Beane, 46 Ga. App. 843 (169 S. E. 386); A. D. L. Sales Co. Inc. v. Gailey, 48 Ga. App. 798 (173 S. E. 734). The case of Lamar v. Taylor, 141 Ga. 227 (80 S. E. 1085), is clearly distinguishable on its facts from the present case.

Under the above rulings the writ of error is premature, and must be Dismissed.

All the Justices concur.