183 Ga. 616 | Ga. | 1936
R. C. Ramey filed an action against Mrs. Ada McCoy, alleging substantially the following: Mrs. McCoy obtained a judgment for $5000 against Ramey at the August term, 1935,' of Rabun superior court, in a mortgage-foreclosure suit. Immediately thereafter Ramey obtained against Mrs. McCoy an order restraining her from proceeding with her judgment, -and from advertising and selling the property, until the petition for injunction could be heard. Mrs. McCoy could not be served with this petition, as she could not be found within the jurisdiction of the court; but the sheriff was duly served. Immediately after Mrs. McCoy obtained her judgment she proceeded forthwith at the very next issue of the county paper, by her counsel, to advertise the property for sale, by using the following device and trick to get the advertisement in the Clayton Tribune, the county paper: The defendant and her counsel W. L. McCoy went to the office oE the Clayton Tribune, and told the editor that they wanted to see the paper which carried a previous advertisement of the property. The previous advertisement having been secured, the defendant and her attorney then and there, without the consent of the sheriff, proceeded to make whatever change was necessary to bring the advertisement up to the final judgment, and did turn the same over to the editor of the paper, paid the cost of the advertisement for one week’s issue, and instructed the editor to put the same in his paper, which he did, not knowing that the same was not authorized by the sheriff. Immediately upon the matter being called to the attention of the sheriff he ordered the advertisement to cease, and the matter was taken out of the paper. Ramey alleged
The defendant filed a demurrer on the grounds that the petition did not state a cause of action for equitable relief, or for damages; that there was no defendant resident in Rabun County against whom substantial relief was prayed, and the court had no jurisdiction; and that the plaintiff had a remedy by illegality if the execution was illegally proceeding, and by attachment if he sought damages. The defendant specially demurred on the ground that it was not shown how the reputation and standing of the plaintiff was injured, and that there was no allegation in the petition which disclosed that the defendant illegally proceeded in any manner to advertise the property in a way to be injurious or harmful to the plaintiff. The court did not err in sustaining the demurrer and dismissing the action. The case of Vining v. Bankers Commercial Security Co., 181 Ga. 556 (183 S. E. 494), is in many respects similar to the instant case. Vining sought to enjoin a proceeding on a note, with garnishment, in a justice’s court, and for recoupment of damages sustained in resisting that suit. Vining filed an equitable petition against Bankers Commercial Securities Company, a corporation domiciled in the State of New York, which held an unsatisfied note. The corporation sued out a gar
In the instant case it is not denied that Barney owed Mrs. McCoy the amount of her judgment, $5000. In fact it is admitted
In the instant case it is admitted that Barney owed the $5000, and any publication to that effect could not damage him, because it was the truth. He was not maintaining the suit on the theory that he had been done a theoretical wrong by the advertisement unauthorized by the sheriff, but that he had been done a wrong in that he was held up to public contempt, hate, and ridicule. Therefore it is not a ease for recovery of nominal damages on the ground of a wrong in filing the advertisement, because the suit was not brought on that theory. Had the plaintiff sued for the wrong in advertising, he must have alleged special damage, and there was no seizure of the property. His suit was brought on the theory of injury to reputation; and, as we have shown, his reputation was not injured by the publication of a truth. If he was injured by the publication of the truth, then it was justified. There was no error in sustaining the demurrer.
Ada McCoy obtained a judgment against Barney on notes secured by deed. When Ada McCoy sought to enforce her judgment on the land pledged, Barney filed a petition to enjoin enforcement thereof. The petition prayed for equitable set-off against the judgment held by Ada McCoy, and for injunction restraining her from proceeding with her judgment until the set-off could be heard and determined. She filed her answer and a cross-action praying for the appointment of a receiver, and a demurrer to the petition for set-off. Upon hearing the court sustained the demurrer and dismissed the petition. Barney filed a bill of exceptions to the order sustaining the demurrer, and the- court signed and certified the bill of exceptions, and granted a supersedeas, before the hearing on the cross-action. Thereafter the cross-action came
Ada McCoy in her cross-petition alleged that said execution was levied on the property in question, and that Barney filed an affidavit of illegality on September 14, 1932, and this affidavit was dismissed upon demurrer. Thereafter Barney filed a suit to enjoin the enforcement of this execution, and the court sustained a demurrer and dismissed the petition. The case was carried to the Supreme Court, and the judgment was affirmed. Ramey v.
“A court of equity may appoint a receiver to take possession of and hold, subject to the direction of the court, any assets charged with the payment of debts, where there is manifest danger of loss or destruction, or material injury to those interested, or where any fund or property may be in litigation and the rights of either or both parties can not otherwise be fully protected.” Orton v. Madden, 75 Ga. 83 (3). It is proper to appoint a receiver to protect property sold on installment payments, the-installments not paid, the interest and taxes accumulating. Adams v. Blalock, 163 Ga. 345 (136 S. E. 146). See Code, §§ 55-301, 55-305.
The plaintiff in error claims that the cross-petition is not germane to the subject-matter of the original petition filed by Ramey. This contention is not well founded. The original petition sought to establish a set off as against the judgment which Ada McCoy, was seeking to enforce. It was therefore appropriate, under the •facts set forth in the cross-petition, that the same should be entertained and relief granted. Plaintiff in error further claims that since the dismissal on demurrer of the original petition had been taken to the Supreme Court, with a supersedeas, the trial court could not proceed further until after the remittitur from the Six
Judgments affirmed.