Spence v. Solomons Co., 129 Ga. 31

Spence v. Solomons Co.

129 Ga. 31 | Ga. | 1907

Atkinson, J.

Solomons Company found the money of Spence in the hands of a receiver in the court of equity, and sought to impound it. To accomplish that object, averring that garnishment was not the remedy, the aid of equity and the application of equitable remedies were sought. The relief prayed is not against the defendant whom Spence was suing, but against Spence. It is independent and in no way germane to the relief which Spence was seeking against Perry’s Pharmacy. It was unnecessary to call the proceeding an intervention. In a proper case, Solomons Company could, of course, by equitable remedy, impound the money found in the hands of-a receiver or in the hands of the defendant or in the hands of any private individual. See, in this connection, Field v. Jones, 11 Ga. 413; Baker v. Gladden, 78 Ga. *35469. But in the ease at bar, and in any other case where resort is had to equitable remedies, it is incumbent upon the intervenor bo allege such facts as under equitable principles would have authorized a court of equity to grant the relief. The relief sought is in its nature not less harsh than the writ of injunction or the appointment of a receiver. It is an attempt to limit the power of •control by Spence of money which rightfully belonged to him and to which he was then entitled to possession. Does the. plaintiff allege such facts as in equity would justify such a harsh remedy? In an ordinary garnishment case it would be required to institute an attachment suit, or a common-law suit seeking a lien; and in either case they would be .required to execute an approved statutory bond in double the amount of the debt claimed to be due, before they could impound the fund. Solomons Company has not done even this. Yet it is asking the interposition of an -equitable remedy. Equity sometimes requires more, but never less than the law exacts for the grant of particular relief. It sufficiently appears from the allegations of the intervention that at best the intervenor is no more than a general creditor of Spence, without any lien, either by judgment or otherwise, and without interest, legal ■or equitable, in the fund sought to be impounded. Without lien ■or interest, either legal or equitable, we can seo no theory, under the allegations of the intervention, by which, under equitable principles, it-could impound the money. See, in this connection, Peyton v. Lamar, 42 Ga. 131, and cit.; Scott v. Jones, 74 Ga. 762 (4); Guilmartin v. Railway Co., 101 Ga. 569, 29 S. E. 189, and cit.; McKenzie v. Thomas, 118 Ga. 728 (6), 45 S. E. 610, and cit.; Tichenor v. Williams Pavement Co., 116 Ga. 308, 45 S. E. 505.

Judgment reversed.

All the Justices concur.