McGregor v. Third National Bank of Atlanta

124 Ga. 557 | Ga. | 1905

EvaNS, J.

(After stating the foregoing facts.) A motion was made by the defendants in error to dismiss the bill of exceptions on the following grounds: (1) Because the receiver of the Bank of Warrenton is an officer of court, and his duty is to act under the order of the court; and the court having ordered him to settle this case, he has no right to appeal, to the Supreme Court. (2) Because no brief of evidence was filed in the case, nor is the evidence incorporated in the bill of exceptions, but certain affidavits therein’ specified as having been used on the hearing are sent up in the record, without being identified by the presiding judge. (3) Because there is in the bill of exceptions no legally sufficient assignment of error.

1. The receiver was, indeed, an officer of court, but he was appointed for the express purpose of representing not only the defunct bank, but also all of its creditors and stockholders. It was within the discretion of the court to permit its receiver to be sued. Weslosky v. Quarterman, 123 Ga. 312. When he was called on, by order of the court, to show cause why the prayers of the petition filed by the plaintiff bank should not be granted, he became a party defendant to the action, and it was his duty to defend it in behalf of all those of whom he was the duly appointed representative. Not only did he have a right to present his defense, but the very purpose of bringing him before the court as a party defendant was that he might urge any defensive matter to the suit which the creditors or other persons interested in the proper administration of the affairs of the defunct bank could urge if themselves made parties defendant. Unless life represented them in the litigation, it would be necessary to bring all of them before the court; else any judgment rendered therein would not conclude or be binding upon them. It was through the receiver that these interested parties had to resist the granting of the relief sought by the plaintiff; and the judgment being adverse to him, it was his right and duty, as their representative, to except thereto, if he or any of them was not satisfied therewith. Their right of review by the Supreme Court was certainly not cut off merely because he was an officer of court and was, under ordinary circumstances, subject to its orders without question.

2. That the evidence introduced on the hearing in the court below is not properly brought to this court, and for that reason can not be considered, affords no cause for dismissing the writ of error. Southern Mining Co. v. Brown, 107 Ga. 264; Pullen v. State, 116 Ga. 555. The case" is to be retained in court, in order that such •disposition of it as is proper without having regard to the evidence, .may be made. Saint Amand v. Lehman, 120 Oa. 253. If the assignments of error can not be intelligently passed on without a review of the evidence, the judgment of the court below must stand affirmed. Ansley v. Davidson, 110 Ga. 279; Moore v. Medlock, 113 Ga. 289. Aliter where questions are presented for determination which do not involve a consideration of the evidence. Hathcock v. McGouirk, 119 Ga. 973.

3. The present bill of exceptions specifically assigns error on the ■overruling of a demurrer interposed by the receiver to the plaintiff’s petition. The record embraces the demurrer and discloses what objections were therein urged against the petition; so the complaint in the bill of exceptions that the court erroneously overruled the demurrer furnishes a legally sufficient assignment of error. Johnson v. Porter, 115 Ga. 401, 403.

4. It is unnecessary to enter into a discussion of the question whether or not the petition filed in this case is such as can technically be termed a bill of peace, as it is styled in the bill of exceptions. We have long since departed from the forms and niceties of equitable pleading which were once in vogue. Taking the allegations of the petition as true, the proposed termination of the pending litigation, to which neither the receiver of the bank nor its creditors and stockholders had been made parties, will prove advantageous and beneficial to all persons concerned in a prop>er administration of the affairs of the Bank of Warrenton. The plaintiff is one of its creditors, and seeks authority of the court which has assumed exclusive jurisdiction in winding up the affairs of the defunct Bank of Warrenton to make a settlement of a valid and just claim against it. The relief sought will not prejudice the rights of any other creditor or any stockholder of that bank. It is hardly to be doubted tha¡t the receiver would be permitted to make such a settlement, if, upon proper application to the court for leave to do so, the judge, having all parties at interest before the court, should deem the settlement expedient and to the common advantage of all. A creditor of the bank might with equal propriety apply to the court for permission to settle a claim against the receiver, if the former could in this way bring to the attention of the court a feasible plan for properly administering the affairs of the defunct bank, then before the court for direction and adjustment through its receiver. We may treat the petition, then, as an intervention filed by a creditor who presents to the court his claim against the receiver appointed under a creditor’s bill, and asks that the receiver be authorized to settle it on terms which will be beneficial to all parties whom he represents. That the court had'jurisdiction to entertain the petition we can not doubt; for the court had undertaken to administer . the assets of the insolvent bank in such way as to best protect and serve the interests of its creditors and stockholders, and certainly had the incidental power, pending the receivership, to call upon them to show cause why its receiver should not be grahted leave to effect a settlement to which the judge was willing to give his sanction, believing it preferable to the prosecution of long and tedious ■litigation, the result of which'could not be foretold and might be adverse to them. It is equally clear, we think, that the judge could with propriety order the receiver to accept the offer of compromise, •in the event he did not, as the representative of those whose inter - .ests might be affected thereby and whose consent to it had not been secured, show cause why it should not be effected at the instance of the petitioners. What reasons he assigned for rejecting the offer of settlement are disclosed by the answer which he filed to the petition; but, since the evidence adduced on the hearing is not before us, we are not informed whether he-sustained by proof the allegations of fact upon which he based his objections to the compromise. We accordingly confine our inquiry to the merits of the objections raised by demurrer, and hold that for no reason assigned therein should the prayers of the petitioner have been ignored and the petition dismissed.

Judgment affirmed.

All the Justices concur.