211 Ga. 74 | Ga. | 1954
Since the attack made upon the judgment is squarely and completely based upon Code (Ann. Supp.) § 37-410 (Ga. L. 1939, p. 344), a ruling on whether or not the facts relied upon come within the provisions of that statute will decide this case. While the statute refers to “all equity cases”'now 'or hereafter pending, it joins thereto the qualifying provision, “wherein assets of either or both parties to the cause are being administered, marshaled or otherwise disposed of by the court,” thus plainly and conclusively showing
The decision in Suttles v. J. B. Withers Cigar Co., 194 Ga. 617 (22 S. E. 2d 129), upheld the act as against the attacks alleging that it offended the Constitution (Code, Ann., §§ 2-103 and 2-2401) and planted that holding upon a construction that the judgment barring one from the right to participate in the fund in court “is a judgment in rem.” The assets in that case were in the hands of a receiver appointed by the court. Likewise assets were in the hands of a receiver in Cohen v. McCandless, 202 Ga. 231 (42 S. E. 2d 739). And while no assets were in the hands of the court in Joel v. Joel, 201 Ga. 520 (40 S. E. 2d 541), there was no bar order of the court in that case either, because that decision was on a judgment on demurrer to a petition praying for the appointment of a receiver, sale by the receiver of the property described, and a bar order under the 1939 act requiring all parties claiming an interest in the property thus taken into custody of the court to intervene. That decision is in harmony with the statute and the other decisions cited above in the indispensable requirement that equity courts can issue bar orders' as provided in the statute only in cases where such courts have, in hand assets that are being “administered, marshaled or otherwise disposed of by the court.”
Judgment affirmed.