Perkins & Littlefield v. Trippe

40 Ga. 225 | Ga. | 1869

McCay, J.

Why should not this mere stakeholder be discharged from this litigation ? The facts set up in the bill are all admitted by the answers of all the parties, 'to-wit, that Hillyer is a mere stakeholder, has no- interest in the fund, and that there is a bona fide, and serious dispute among the others, as to who is entitled to control this money. There is besides a serious difficulty, under the Constitution, in trying the rights of these parties in Eulton county. One of these defendants resides in Burke, another in Columbia, and a third in Glynn county, and. the matter in dispute is entirely with thetq. Nobody in the least interested in this fund, resides in Fulton county. Nor is the fund a fund, in Court, raised by its process, or by its order. It is the simple case of one owing money belonging to a partnership. _ We do not think Fulton county has such a jurisdiction of this matter, as to authorize an investigation and settlement of the affairs of these partners, in Fulton county. The only jurisdiction it has is to enjoin the rule, pending against Mr. Hillyer; and the proper decree is that these parties shall interplead.

This decree the Judge may make without the intervention of a jury, because on the facts, necessary to make such a decree, there is no dispute: Code, section 4142. A decree that the bill is properly filed, disposes of the case, as to the complainant-: Daniel’s Chancery Practice, 1764. The manner of the interpleading depends upon the nature of' the casé. If . the dispute is one at law, the Court will direct the pleading accordingly : Daniel’s Ohancfery Practice, section 1765.

In analogy to this, we see no x’eason why the Court of Fulton may not decree the interpleading to be in the county of the residence of one of the parties. Mr. Hillyer stands ready, and proffers to pay this money into Court, or as the Court shall direct. We think he is entitled to be relieved from risk and to have the rule against him enjoined. As appears by the bill and answers, he was employed to collect' this money by one of the firm, after its dissolution. After dissolution, oixe of a firm cannot make a contract, in the firm name. The contract, in this case, was between Mr. Perkins and Hillyer, that Hillyer should collect, in the firm name, this nxoney. There is no pretence that Perkins is insolvent, or that this money will be moved out of the reach of the other partners, in his hands, than it is now, while ixx Hill-yer’s hands. Each partner has a right to collect it, for .the firm ; and, had Hillyer paid it to Perkins, he would have received it for the use of the partnership.

It is, however, only just that all parties should be-fully protected, and we are of opinion that Perkins should give bond, to account for this money to the parties composing the firm. After the dissolution, he, through his agent, has collected it. He is liable to'Mr. Hillyer for his fee. For, whilst he, Perkins, has a right to expend the money of the partnership in the collection of its assets, he dealt with Mr. Hillyer as an individual, and on the contract Mr. Hillyer can only look to him.

Upon the whole, therefore, we think the Court below erred in not making’ a decree on the¡ bill and answers, as there was no dispute on the facts.

Mr. Hillyer ought to be discharged from the litigation, the rule against him ought to be enjoined, the money ought to be directed to be paid to Perkins, on his filing, in the Clerk’s office, a bond to account to his partners for this money, and the partners ought to be left to litigate their rights, in the tribunal which has jurisdiction of their dispute; and we will so direct, under the power granted to this Court, by section 4219, of the Code. Judgment reversed.