173 Ga. 192 | Ga. | 1931
A petition in equity was filed in Bryan superior court in the name of alleged creditors of A..T. Smalling, deceased, to subject to the claims of themselves and other creditors an interest in real estate in Bryan county, alleged to belong to the Smalling estate. A claim to the property was filed by John I. Cox in his intervention; and the court appointed him receiver, he appearing-to have been in charge of the property and to have the legal title thereto. Later, the creditors in whose name the original petition was brought directed that the suit be dismissed. Mrs. Smalling, administratrix of A. T. Smalling, intervened and sought the removal of Cox and the appointment of another receiver, praying that the property be sold. The judge of the superior court, at the August term, 1930, appointed a coreceiver to act with Cox, and ordered that they seek a purchaser of the land involved, the sale to be subject to confirmation by the court. Mrs. Smalling tendered a bill of exceptions to the foregoing order on September 2, 1930, and the same was certified on September 12, 1930, and filed in the office of the clerk of the superior court on September 19, 1930. On September 2, 1930 (the same' day on which she tendered the bill of exceptions) Mrs. Smalling amended her original answer or intervention, and therein made a motion to dismiss the petition. The amendment and motion to dismiss were as follows:
“Now comes Mrs. Jennie D. Smalling, widow of A. T. Smalling Sr., and administratrix upon his estate, and moves to amend her answer and intervention heretofore filed in said ease, to wit, on June 18, 1930, as follows: By striking therefrom all of the prayers which seek affirmative equitable relief, except that prayer which seeks removal of John I. Cox as receiver and the prayer for rule nisi. The said Mrs. Jennie D. Smalling, widow and administratrix as aforesaid, moves to dismiss the original bill in*194 equity filed in said cause, and to discharge the receivers heretofore appointed; and for reason therefor alleges: 1. The original bill in equity in this cause was collusively filed at the instance and request of John I. Cox, and without authority from the petitioners therein, and therefore should be dismissed; upon information and belief she avers that counsel appearing for said petitioning creditors was ■ never authorized to file said bill in their behalf; they promptly disaffirmed the act of such counsel, and have heretofore sought and now seek to have said bill dismissed. 2. The counsel who appeared for said petitioning creditors, to wit, J. A. Caldwell, is not authorized to practice law in the State of Georgia, and could not legally present or file said petition in behalf of said petitioning creditors. 3. Prior to the filing of said suit the said J. A. Caldwell, who is a member of the bar of the State of Tennessee, practicing in Bristol, Sullivan County, Tennessee, -was and still is counsel for John I. Cox, one of the defendants in said cause, and brought said bill at his instance and request and in his behalf, and sought to arraign him as a nominal defendant, when in truth and in fact he was the real plaintiff; and a fraud was practiced upon the court in so doing. 4. Said John I. Cox, prior to the filing of said bill, had been enjoined, by a valid order of the chancery court of Sullivan County, Tennessee, in a certain proceeding therein involving the administration of the estate of A. T. Smalling Sr., to which he was a proper party and properly before the court and represented by the said counsel, J. A. Caldwell, from prosecuting any action in any other court involving the subject-matter of this litigation; and the action of said John I. Cox in causing said proceedings to be instituted was a fraud upon the court. 5. There is no necessity for such proceedings in Georgia; it has already been adjudicated in the said chancery court of Sullivan County, Tennessee, that the legal title held by said John I. Cox in and to the property described in said bill is only security for a debt, the amount of said debt has been adjudicated, a proper tender of said amount has been made to the said John I. Cox, and he has refused to convey title to this defendant or her nominee, in violation of a valid order of the said chancery court of Sullivan County, Tennessee; and by reason of such facts he has been adjudicated to be in contempt of the said Tennessee court, has been ordered committed to jail, and has fled the juris*195 diction of the Tennessee court, and is now remaining in Bryan County, Georgia, to escape the consequence of the Tennessee court’s order. 6. The appointment of receivers in this cause was improvidently made by this honorable court, without the foregoing facts having been brought to the knowledge of the court, and should therefore be revoked, and the receivers discharged; and defendant offers to do equity by abiding such decree of this honorable court as may be entered, providing for compensation, if any, to such of the court’s officers as may be lawfully entitled thereto, and by paying such amount. 7. This amendment and motion to dismiss and discharge .receivers is presented at the same term of court at which an order of sale of the said property was entered, and before the adjournment of the term. Wherefore defendant prays that this amendment be allowed, that the original bill in said case be dismissed, and the receivers discharged.”
The court thereupon issued the following order: “The foregoing amendment and motion of Mrs. Jennie D. Smalling, widow of A. T. Smalling Sr., deceased, and administratrix of his éstate, having been presented, the same is ordered, filed. It is further ordered that the above-named plaintiffs and John I. Cox, one of the the defendants, and all other parties of record or at interest show cause before me at Claxton, Georgia, on the 18th day of October, 1930, at 11 o’clock a. m., if any they or either of them have, why the prayers of the foregoing motion and amendment should not be granted. Let a copy o'f the within motion and amendment be served upon each of the parties at interest, unless service be waived, at least five days before said hearing. This September 2, 1930.” TJpon the return of the answer to the rule nisi upon the motion to dismiss on October 18, 1930, the trial judge refused .to hear evidence on the motion to dismiss, his order being as follows: “ The within amendment and motion coming on regularly to be heard, under order, and it appearing to the court, that the same subject-matter is before the Supreme Court, it is ordered, considered, and adjudged: (1) That the court declines to hear evidence and in support of the amendment and motion. (2) That the rule heretofore granted on the same be discharged. At Chambers at Claxton, Georgia. This October 18, 1930.”
The court did not err in refusing to hear evidence on the motion to dismiss, if for no other reason than that on October 18, 1930,
Judgment affirmed.