162 Ga. 474 | Ga. | 1926
1. In equity practice as a general rule “it is the province of the judge . . to determine upon whom the costs shall fall.” Civil Code (1910), § 5423. In the early case of Pearce v. Chastain, 3 Ga. 226, 230 (46 Am. D. 423), it was said: “Costs in chancery do not always follow the event of the suit, but are awarded according to the justice of the cause. They rest in the sound discretion of the court, to be exercised upon full view of all the merits and circumstances of the case.” This is a good statement of the rule, and it has been consistently recognized. Lowe v. Byrd, 148 Ga. 388 (96 S. E. 1001), and cit. The rule excludes arbitrary action by the judge, and an award taxing costs will be arbitrary and amount to an abuse of discretion where the award is contrary to law and equity and justice. Hamilton v. DuPre, 103 Ga. 795 (30 S. E. 248); Lowry Banking Co. v. Atlanta Piano Co., 95 Ga. 146 (22 S. E. 42); Macon Savings Bank v. Carter, 107 Ga. 778 (33 S. E. 679). The facts in Hamilton v. DuPre, supra, were that Mrs. Hamilton instituted an equitable action to enjoin a constable from selling property under a distress warrant in favor of Mrs. DuPre. Mrs. DuPre and the constable, defendants in the equity suit, by their answer in the nature of a cross-petition sought the appointment of a receiver. The issues involved in- the distraint proceeding were drawn into the equity case, and on the trial a verdict was returned in favor of Mrs. Hamilton, the plaintiff in the equity case; and it was thereupon adjudged that she was not liable to Mrs. DuPre for any rent, but nevertheless the judge taxed her with the costs incurred in the equity case.
The facts in Lowry Banking Co. v. Atlanta Piano Co., supra, sufficiently appear in the opinion, which is quoted in full: “The Lowry Banking Company, as trustee for certain creditors of the Atlanta Pianoforte. Manufacturing .Company, held a deed of. trust to all the property of this corporation, to secure the payment of the debts described therein. A bill was filed by this trustee for the purpose of foreclosing the trust deed held by it, and the appointment of a receiver was prayed against the defendant. Subsequent
The facts in Macon Savings Bank v. Carter, supra, sufficiently appear in the opinion, which is quoted in full: “The Macon Savings Bank and others were judgment creditors of Mayer & Crine, who owned a stock of merchandise in the City of Albany and a plantation in Dougherty County. The judgments held by these creditors were the oldest and highest liens upon the property belonging to this partnership. The Loomis & Hart Manufacturing Company held a mortgage covering the stock of merchandise, junior in date to the judgments above mentioned. Executions which had issued upon these judgments and upon a foreclosure of the mortgage were levied upon the stock of goods. After this, Jacob Lorch and other unsecured creditors of Mayer & Crine filed a creditors’ petition, upon which a restraining order was granted and a temporary receiver appointed to take charge both of the goods and the farm whereon Mayer & Crine had been conducting farming operations. At the interlocutory hearing, the restraining order was dissolved and the receiver discharged. During the time the receiver was acting, he made advances to the. amount of more than $600 To said farm,’ under the order of court appointing him. After the dissolution of the restraining order, the merchandise was sold by the sheriff under the mortgage execution in favor of the Loomis & Hart Manufacturing Company. The fund thus realized was in amount insufficient to satisfy in full the common-law judgments. The plaintiffs therein instituted a rule against the sheriff, to which proceeding the receiver was made a party. Hpon the hearing thereof, the only contested issue was whether' the money should be paid to the receiver upon his claim for advances, or to the plaintiffs in the common-law executions. It was not shown that the receiver had incurred any expense in keeping the goods or that he rendered any valuable services with respect to the same. The court directed the sheriff to pay the money to the receiver, and the other parties at interest excepted. This decision was clearly erroneous. There is no principle, either legal or equitable, of which we are aware, authorizing this fund to be thus taken from the parties holding the executions to which the same was subject. As to them, there was no necessity whatever for a re
In Garmany v. Lawton, 124 Ga. 876, 883 (53 S. E. 669, 110 Am. St. R. 207), it was said: “If the mortgagee comes in and makes himself a party complainant, and sets forth the fact of his mortgage, and voluntarily litigates with the other creditors, he thereby recognizes the necessity for the petition and ratifies the filing of it; and thus becomes chargeable with his proportion of the expenses of the suit. Lowry Banking Co. v. Abbott, 87 Ga. 134; Lewis v. Edwards, 92 Ga. 533; Central Trust Co. v. Thurman, 94 Ga. 735; Bradford v. Cooledge, 103 Ga. 753, 761.”
In the instant ease the suit was an equitable suit instituted by the widow of the debtor against the other heirs at law, seeking
Judgment affirmed.