157 Ga. 11 | Ga. | 1923
ON REHEARING.
1. We have carefully examined the motion for rehearing, and also the briefs filed by both parties to the motion, together with the authorities cited; and we are still of the opinion that the judgment of the court below should be affirmed.
In the motion for rehearing it is contended that “in the original case of W. P. Darsey et al. v. J. B. and A. J. Strickland, the plaintiffs are not lien creditors, either by contract or judgment, and for this reason they are not entitled to enjoin their debtor from disposing of property, nor obtain injunction or other extraordinary relief in equity. Park’s Code, § 5495.” It is further contended that the agreement on the part of the original defendants, J. B. and A. J. Strickland, that a receiver be appointed and injunction granted, while binding on them, would not be binding on the trustee of J. B. Strickland, bankrupt. In the companion case to the present, Strickland v. Darsey, 156 Ga. 717 (120 S. E. 7), this court decided that A. J. Strickland was properly enjoined from going into a bankruptcy court and proving his claim of lien, he being a defendant in the State court and having consented to the appointment of a receiver and having acquiesced in the receivership proceedings; and that the proceedings in the State court had been pending for more than four months prior to the adjudication of J. B. Strickland as a bankrupt. In the instant case J. J. Murray as trustee in bankruptcy brought his petition praying that the court grant a rule nisi directed to T. E. Miller, receiver appointed by the State court, and A. J. Strickland, custodian, requiring them to show cause before the court why the described property should not be turned over to Murray as trustee, and that upon the hearing the
We are therefore of the opinion, that, having failed in his petition to make such an attack in the lower court on the order appointing a receiver and granting an injunction, the trustee cannot be now heard for the first time to raise that, question in this court. We are also of the opinion that the trustee will not be allowed to make a collateral attack on the order of the court appointing a receiver and granting an injunction, where it appears that the court had jurisdiction both of the person and of the res. It will be borne in mind, too, that in a case like the present the suit must
And the Supreme Court of this State has held, in cases where the trustee applies for possession of the property in the hands of the receiver appointed by the State court, that the trustee cannot question or contest the jurisdiction of the State court in appointing a receiver, but that his right to the possession of the property depends solely on the extrinsic fact of bankruptcy. Young v. Hamilton, 135 Ga. 350 (69 S. E. 593, 31 L. R. A. (N. S.) 1057, Ann. Cas. 1912A, 144).
In 1 Pom. Eq. Jur. (4th ed.) 155, § 129, it is said: “The proceedings and judgment of a court of chancery, or of a court clothed
2. The bankruptcy act of 1898 being a Federal statute, the construction placed on it by the Federal courts will be binding. 5A Am. Dig. Key No. Series, 544, § 97(5); 5 Am. Dig. Dec. Ed. 2108, § 97(5), (b), (m). “It is a well-settled rule of jurisprudence which has been followed by this court since its earliest history, as pointed out by Chief Justice Jackson in Ciarle v. Turner, 73 Ga. 1, to construe all statutes of. a sister State, as well as the statutes of the United States, in accordance with the meaning and construction placed upon them by the court of these foreign'jurisdictions.” Bugg v. Consolidated Grocery Co., 155 Ga. 552, 553 (118 S. E. 56). “The decision of the United States Supreme Court is binding on the State Supreme Court on questions as to the construction of the Federal bankruptcy law.” 6 Second Dec. Dig. 1387, § 97(5) (Tex.); Bank of Garrison v. Malley, 103 Tex. 562 (131 S. W. 1064). The right of the trustee in bankruptcy to the pos
3. It is contended by plaintiff in error that an adjudication of the rights of the parties in the instant case in the State court would not determine the rights of other creditors not parties to the case, and that there would not, therefore, be an equal distribution of the assets in the hands of the receiver. The Civil Code
4. In Norman v. Williams, 38 Am. Bkr. R. 770 (240 Fed. 788), the rule is stated as follows: “There can be no doubt that if the State court acquires jurisdiction more than four months before the bankruptc3r petition is filed, its jurisdiction cannot be interfered with.” And see 1 Collier on Bankr. (12th ed.) 294, 554, 555. It appears from the record in this case that certain creditors of J. B. Strickland filed suits against him to the January term, 1922, of Lanier superior court, arid no answers were filed in these cases, and they were therefore in default. On July 8, 1922, the defendants,