Ragan v. Smith, 142 Ga. 398

142 Ga. 398 | Ga. | 1914

Atkinson, J.

(After- stating the foregoing facts.) It was long ago held by this court, that, for the purpose of marshaling the assets of an insolvent estate, the executor or administrator may file a bill for the purpose of reducing the property to money and ascertaining the order in which the debts are to be paid. Macon &c. R. Co. v. Parker, 9 Ga. 377. A few years later it was held in such a case that equity may interpose, on the application of an administrator, and enjoin suits of creditors. Beers v. Strohecker, 21 Ga. 442. See also Johnson v. Flanders, 65 Ga. 691; Jeter v. Barnard, 42 Ga. 43; Stephens v. James, 77 Ga. 139 (3 S. E. 160). Under the doctrine of these eases, there is no difficulty in holding that the record now under consideration shows proper ground for interposition of equity for marshaling the assets of the estate, and to that end for enjoining other pending actions, and requiring the parties to interplead. The executor could not proceed intelligently with the trial of his plea of plene administravit praeter, without ascertaining the condition of the estate with respect to the relation of assets to liabilities. Being an equity suit, the venue may be laid in the county of any defendant against whom substantial relief is prayed. Civil Code, § 6540. Owing to the nature of the relief sought, a suit in the county of the residence of any creditor would be within the contemplation of the law on the subject of the venue of suits. At the commencement of the suit no creditor residing in Laurens county was expressly declared to be a party defendant, nor was process prayed against any such person; but certain persons residing in that county were alleged to be creditors, and their claims were described, and the scope of the petition involved the rights of all creditors. Among these were the Four Seasons Department Store. Before the interlocutory hearing the judge passed an order making the Four Seasons Department Store a party defendant, to which no exception was taken. On the record as thus presented the suit was against the person thus made a party defendant, as-well as those specially named as such in the first instance. "While the Four Seasons Department Store was not served with the order making it a party, there was time for service before the trial; and the case is not to be treated as one in which service could not be made upon it. Under these circumstances there was enough to authorize the court to retain jurisdiction, and there was no error in not refusing the interlocutory injunction on the ground that the court was without jurisdiction. No other ground of defense was urged.

Judgment affirmed.

All the Justices concur.