117 Ga. 67 | Ga. | 1903
Vizard, a resident of Louisiana, sued Mrs. Moody in ejectment to recover certain land in Glynn county, and for mesne profits. From the declaration in ejectment it seems that D. H. & S. A. Moody, a partnership, had assumed an- indebtedness due to Vizard by one Walter, and for security had given a deed of trust to the land in dispute. The debt was not paid when due, the trus-.
1. Service of the petition in the ancillary suit was made upon E. Ca Buttsj a member of the firm of Gale & Butts, attorneys, who represented Mrs. Moody in the defense of the main ejectment suit.
2. Exception is also" taken to the ruling out by the court of certain evidence offered by the plaintiff. With one exception, we do not see any error in the rulings complained of, which would authorize a reversal of the judgment of the lower court. • As proof of the insolvency of the defendant, the plaintiff offered evidence by a witness to the effect that he had examined the records of Appling county, Georgia, where the defendant formerly resided and did business ; that there was outstanding a judgment against the defendant unsatisfied; thathehad also examined therecordsin the office of the tax-collector of Wayne county, Georgia, where the defendant lived after leaving Appling county, and just prior to leaving the State of Georgia, and that there was on such tax-books no entry of any tax return by the defendant. I-t- was of course inadmissible to prove by parol that there appeared on the records an unsatisfied judgment against the defendant, a certified copy of such judgment being the best evidence of- its existence; but, under the ruling of this court in Hines v. Johnston, 95 Ga. 629, and Greenfield v. McIntyre,
The theory of the able counsel for the defendant in error seems to be that the plaintiff did not show himself to be a lien creditor -of the defendant below, and that therefore he was not entitled to the appointment of a receiver; and cases are cited which announce the well-settled proposition that generally a receiver will not be appointed at the instance of creditors who have no lien. The reply is that the plaintiff, so far as appears from the record, occupies a more favored position than a creditor of any sort could possibly occupy. For the purposes of this ancillary suit, it appears that he showed absolute title to the property in himself; and there is not
Other questions of minor importance appear to have been made-in the court below, hut we are unable to tell what view was taken of them by the trial judge, or what hearing they had upon the judgment which was rendered. We have here discussed only those points which seemed to us material to a proper determination of the case, and which were argued by counsel for both sides in their briefs. Judgment reversed.