Lawrence v. Lawrence

26 S.E.2d 283 | Ga. | 1943

1. Although since the uniform procedure act of 1887 (Ga. L. 1887, p. 64; Code, § 37-901) "a creditor may in one suit proceed for judgment on his debt and to set aside a fraudulent conveyance made by his debtor," still, under the Code, § 55-106, "creditors who have not reduced their demands to judgment, and who have no lien otherwise, can not, as a general rule, . . enjoin their debtors from selling or disposing of their property." Keeter v. Bank of Ellijay, 190 Ga. 525, 526, 528 (9 S.E.2d 761), and cit. In order for such an unsecured creditor to be entitled to equitable relief, special circumstances must exist, such as "where an insolvent debtor is fraudulently transferring his property to one in complicity with him, who is disposing of the property, or where property is obtained by fraudulent representations." Hermann v. Mobley, 172 Ga. 380 (158 S.E. 38), and cit; Goodroe v. Thomas Warehouse, 185 Ga. 399 (3) (195 S.E. 199); Albany c. Steel Co. v. Southern Agricultural Works, 76 Ga. 135 (3), 169 (2 Am. St. R. 26), and cit.; National Casket Co. v. Clark, 181 Ga. 6, 9 (181 S.E. 146), and cit.

2. Since the uniform procedure act, by merely permitting parties to obtain all necessary and proper legal and equitable relief in the same case (Code, § 37-901), did not create any new ground for extraordinary remedies, the settled general rule still obtains that the remedy of injunction does not lie in favor of one who has a complete and adequate remedy at law, such as an ordinary attachment or fraudulent-debtor attachment under appropriate grounds of the Code, §§ 8-101, 8-401, 8-402, with or without garnishment under §§ 8-501 et seq. Booth v. Mohr, 122 Ga. 333, 336 (50 S.E. 173), and cit.; Carstarphen Warehouse Co. v. Fried, 124 Ga. 544, 546 (52 S.E. 598); Comer v. Coates, 69 Ga. 491 (3); Stephens v. Whitehead, 75 Ga. 294; Haslett v. Rogers, 107 Ga. 239. 243 (33 S.E. 44); Grimmett v. Barnwell, 184 Ga. 461, 469-472 (192 S.E. 191, 116 A.L.R. 257), and cit.; Burns v. Hale, 162 Ga. 336 (2) (133 S.E. 857); Code, §§ 55-101, 37-120, 55-108. See also, as to the nature and extent of such remedies in cases involving non-residents, Harmon v. Wiggins, 48 Ga. App. 469 (6, 7), (172 S.E. 847). and cit.

3. An alimony decree of a sister State, providing for future monthly payments, is such a decree as is enforceable in this State, under the full faith and credit clause of the constitution of the United States, as to such payments as have become due and are unpaid at the time of a judgment thereon in this State. Roberts v. Roberts, 174 Ga. 645 (163 S.E. 735); Cureton v. Cureton, 132 Ga. 745, 751 (65 S.E. 65); Heakes v. Heakes, 157 Ga. 863, 867 (122 S.E. 777); McLendon v. McLendon, 66 Ga. App. 156, 159 (17 S.E.2d 252). But the fact that such a decree of another State was for alimony will not make the Georgia suit on such decree an alimony case, since it "is simply an action on a debt of record." McLendon v. McLendon, 192 Ga. 70 (14 S.E.2d 477), and cit. Accordingly, such a suit in a Georgia court does not come within the statutes and more liberal rules as to extraordinary relief in favor of a wife, who has already filed or is about to file in this State a suit for divorce and alimony or alimony alone, and who needs such additional equitable protection against threatened conveyances by the husband until the termination of the question of alimony. As to statutes and cases relating to the last-mentioned class of suits, see Code, §§ 30-112, 30-111, 30-115, 30-206, 30-209, 30-210, 30-213; Wallace v. Wallace, 189 Ga. 220, 222 (5 S.E.2d 580); Stephens v. Stephens, 168 Ga. 630 (148 S.E. 522); Boone v. Taylor, 185 Ga. 433, 434 (195 S.E. 761), and cit.; Wood v. Wood, 166 Ga. 519 (3) (143 S.E. 770), and cit.; Parker v. Parker, 148 Ga. 196 (4-a) (96 S.E. 211); Melvin v. Melvin, 129 Ga. 42 (2) (58 S.E. 474); Attaway v. Attaway, 193 Ga. 51, 52 (17 S.E.2d 72).

4. Under the foregoing rules, this petition by a non-resident former wife, brought in Georgia, to recover a judgment for past-due monthly instalments under a Florida decree for divorce and alimony, and to enjoin the former husband from transferring or incumbering Georgia assets, was controlled by the general rules applicable to suits by creditors without a lien; and under the undisputed evidence, although the suit, if sustained by proof at the trial, would be maintainable on the prayer for a judgment at law, the court properly refused an interlocutory injunction, since the averments and evidence failed to show that the plaintiff did not have a full and complete remedy at law, as she apparently had by attachment, with or without garnishment, according to the facts, and since the burden was on her to show any exceptional facts making such a remedy at law inadequate. Nothing to the contrary was held in Roberts v. Roberts, 174 Ga. 645 (supra), where no question was decided or raised as to the adequacy of a remedy at law, or as to the right of the former wife to an injunction against her former husband.

Judgment affirmed. All the Justices concur.

No. 14506. MAY 6, 1943. REHEARING DENIED JUNE 12, 1943. In October, 1940, Mrs. Marian Smith Lawrence obtained in the circuit court of Volusia County, Florida, a decree of divorce and for the payment of alimony of $200 a month as long as she lived and remained unmarried. In October, 1942, she filed an equitable petition in the superior court of Chatham County, Georgia, against her former husband and the executor of his father's will. She alleged that at the time of the filing of the petition he was $900 in arrears on the alimony payments; that he had "disposed of his properties in Florida," and had "likewise sold a large part of his properties in Georgia;" that "it is defendant's intention to continue to sell his properties, both real and personal, wherever situated, convert the same into cash, remove the same from the jurisdiction of the court, and place his assets so that they can not be subjected to the lien of the judgment;" that under his father's will he was entitled to one fifth undivided interest in the father's estate, which was of substantial value; that the defendant also owned described lots of land in Savannah; that unless he "is restrained . . from disposing of [said] property, and unless . . the executor of the estate . . is restrained from delivering to defendant his distributive share of his father's estate, defendant will dispose of said property and the interest in his father's estate, and there will be no properties of defendant within the jurisdiction of the court against which petitioner may proceed to enforce the judgment of the Florida court, which is sought to be made the judgment of this court. It was further alleged, that the Florida decree was based on a written agreement of the husband and wife, fixing their rights of property, maintenance, and support; that the husband complied with the decree for more than a year and a half, but then refused to do so; that "the refusal and failure to pay said instalments in arrears is in bad faith on the part of the defendant;" that "he is amply able financially to pay the amounts due petitioner . . knows that [such] refusal . . has put petitioner in an embarrassing position, and his action is deliberate and without any pretense of justification;" that such failure and refusal has subjected her to large expense, including the employment of counsel, and "is an attempt on his part to coerce petitioner into making a compromise settlement of the judgment of the Florida court on his own terms, without regard to the equities and rights of petitioner."

The prayers were: that a judgment be rendered for all installments in arrears up to the time of final judgment; that sufficient property be impounded to insure the payment of future instalments; that the defendant be temporarily and permanently restrained and enjoined from disposing of or incumbering the property described in the petition, or disposing of or making any transfer or lien on his share in the estate of his father; that the executor be enjoined from delivering defendant's share of the estate pending final judgment; and that that plaintiff have further relief.

The record shows no demurrer to the petition. The answer of the defendant set up, that the former wife was due him $3,350 for moneys advanced to her before the alimony decree; that the Florida decree gave to plaintiff's claim no higher rank than that of an ordinary creditor without a lien; that such a creditor has no right to an injunction; and that no facts and circumstances were alleged which take the case out of the general rule that "a creditor without a lien cannot enjoin his debtor from disposing of property nor obtain injunction or other extraordinary relief in equity." The plaintiff excepted to the refusal of an interlocutory injunction.

The testimony of the plaintiff at the interlocutory hearing showed, that she then resided in Coral Gables, Florida; that since the alimony decree in 1940, the husband had made payments as she alleged, but at the time of the hearing in December, 1942, $1300 was due; that the husband "absolutely refused to pay any of this past-due amount;" that before he left Florida an order had been obtained there, restraining him from disposing of his Florida properties, but he left Florida before service of this order, and sold his property there, a home and his business, and drew out everything he had in the banks. She further testified that "he had made threats as to what he would do, he stated that he was not going to pay me any more alimony if he had to dispose of everything he had and leave the country;" that "he did not give any reason for his refusal to pay, except that he just did not want to pay;" that his approximate income would be around $1,000 a month — "we averaged around $700 or $800 a month, he did no work;" that "he just made the statement that he was not going to pay alimony any longer, that he was tired of it, that he was going to dispose of his property and leave;" that "he had a house and he sold that, and $10,000 in cash, and he had an interest in a furniture business; . . his income was mostly from stocks and bonds;" that he had petitioned the Florida court to modify the decree, and, after a refusal, disposed of his property. The trust officer of the executor corporation testified, that, after the payment of taxes and special bequests, the estate of the defendant's father would amount to about $150,000, leaving about $30,000 for each person at interest; that in view of a Federal estate-tax return, "it is not practicable . . to make any division of the estate for a number of months to come;" that "unless some emergency arose, we would not make any partial distribution of the estate;" and that "we would not have any control over an assignment by [the defendant] to some other person, I imagine, that would be binding on the bank."