12 S.E.2d 589 | Ga. | 1940
Lead Opinion
1. A judgment on one of the substantial issues in an equity case, which if not superseded would work an injury to the losing party that would not be completely cured by a reversal, is reviewable by the Supreme Court on a direct bill of exceptions while other issues in the case are still pending in the trial court.
2. While it is the province of the judge in equity cases to determine upon whom costs shall fall, this is a matter that rests in the sound discretion *453 to be exercised upon full view of all the merits and circumstances of the case. The rule excludes arbitrary action by the judge. An award of attorney's fees at an interlocutory hearing, based solely upon the pleadings, where the verified answer shows that one partner is suing another, and that the defendant owns all the assets of the business, and the plaintiff has no interest therein, but has been guilty of converting to his own use property belonging to the partnership, and that the case is being prosecuted solely for the purpose of enabling the plaintiff's counsel to obtain an order granting to the plaintiff's counsel a fee of $300 is an abuse of discretion, and must be reversed.
The petition alleged that the parties had disagreed, and prayed for an accounting, receivership, and injunction. The defendant's answer admitted the execution of the contract and the operation thereunder; and further alleged, that the plaintiff had violated his fiduciary relationship to the defendant by slipping into a warehouse leased by the defendant in Lexington, North Carolina, and taking therefrom 600 chairs valued at $700, disposing of the same and converting the proceeds to his own use, without informing defendant or accounting for the same; that because of such misconduct on the *454 part of the plaintiff, the defendant informed him that the partnership relation would be terminated, and offered to sell the business to the plaintiff, which offer the plaintiff refused. The answer admitted that an end to the contractual relationship was necessary, and offered to make a full and complete accounting of every item of business transacted, but denied that plaintiff was entitled to any other relief. The answer further alleged, that for each month of the operation of the business the defendant had given to the plaintiff a full and complete statement, and had paid in full the sixty per cent. of the profits to which the plaintiff was entitled; that the plaintiff had been paid every penny that he was entitled to from the business; that the defendant was solvent; that the assets of the firm represented the original money which the defendant put in the business and other money which he had individually placed in the business subsequently, and that they were liquid with the exception of certain chairs in the warehouse in North Carolina, which the defendant could dispose of for a better price than they would bring under court procedure. It was further averred that the plaintiff claimed no interest in the business, and had expressed himself as desiring only to be relieved of any responsibility for its affairs and from criminal responsibility for his actions, that this entire proceeding was brought for the sole purpose of aiding plaintiff's attorney in his demand for a large fee from the assets of the business, and that the plaintiff's attorney was threatening lengthy court proceedings elsewhere unless his demands for a fee were met. The answer offered to post security bond, in whatever amount the court should fix, binding the defendant to account for the affairs of the partnership, and prayed that plaintiff's prayers be denied, and that plaintiff and his attorney be enjoined from filing further suits in connection with the business. This answer was duly verified.
On August 5, 1940, the court entered a consent order authorizing the defendant to sell certain property belonging to the partnership, and to deposit the funds derived therefrom with the clerk of the court, and permitting the defendant to execute an indemnity bond in the sum of $5000, conditioned to pay the plaintiff any sum that might be found in his favor on final accounting. By a subsequent order the court authorized the defendant to accept a ninety-day note for the merchandise which he had been authorized to sell, and personally *455
indorse the note and deposit it with the court. Pursuant to such orders, certain funds were deposited with the clerk of the court. Thereafter the plaintiff's counsel made application to Hon. Edgar E. Pomeroy, judge of the court, for an allowance of fees to himself as counsel for the plaintiff, in which application it was alleged that as a result of plaintiff's action there was in the custody of the court cash or its equivalent of an unspecified amount, and that, having been instrumental in bringing said sum into court and having rendered services incidental to said case, he was entitled to compensation for such services from said fund. On this application, with no evidence except the pleadings, the following order was entered by the judge: "The foregoing application read and considered, and upon consideration thereof it is ordered and adjudged that the clerk of this court do pay to A. E. Wilson the sum of three hundred dollars from the funds in his custody, same to apply on account of services rendered in the said case. This order to be superseded for five days. This 4th day of Sept., 1940." To this order the defendant excepted.
1. Although no motion is made in this court to dismiss the writ of error on the ground that the bill of exceptions is premature, we believe that question is close enough to warrant consideration by the court to determine our jurisdiction. The general rule is that no cause shall be carried to this court upon any bill of exceptions while the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause or final as to some material party thereto. Code, § 6-701;Ross v. Byrd,
2. Since no receiver has been appointed in the present case, Code, §§ 55-314 and 55-315, providing for attorney's fees in cases where a receiver has been appointed, have no application here. The Code, § 37-1105, relating to equity cases, declares: "Special verdicts may be found by the jury, and they may recommend to the court the assessment of costs upon the respective parties. It is the province of the judge, however, to determine upon whom the costs shall fall." In construing this section this court, in Hamilton v. DuPre,
Judgment reversed. All the Justices concur, except
Dissenting Opinion
While agreeing to the ruling in division 2 of the decision, which deals with the substantive law involved, I dissent, because of my conviction that the order excepted to is not such a final judgment as can be made the basis of a direct bill of exceptions; and accordingly the writ of error should be dismissed. See especially Ross v. Byrd,