Watson v. Goolsby

86 Ga. 805 | Ga. | 1891

Simmons, Justice.

The trial judge placed his refusal of an injunction and the appointment of a receiver in this case upon the ground that the minor son was interested in the land and the fund; that he had not been properly served in the common law suit, and therefore the judgment or decree sought to be enforced in this equitable petition did not bind him. We think the trial judge was wrong in holding that the infant had an interest which the judgment or decree would bind had he been properly served. Mrs. Goolsby, the mother, is the only person having a direct interest in the land. She has a life estate therein during the life of her husband, John K. Goolsby, with a charge thereon for the support and maintenance of her husband during his life. After his death, the minor, John K. jr., and such other children as may be living at his death, take the fee.

But while the reasoning of the judge was erroneous, his judgment refusing the injunction may be right, according to the facts disclosed in this record. There are two reasons which might have authorized him to refuse the injunction, if they had been considered. The first is, did the superior court, on an appeal from the county court, have the right and power to allow the amendments making John K. Goolsby and his son parties to the action in the superior court; and did it also have power and authority to allow the amendment seeking equitable relief? Did it have the power and authority to enter up the judgment or decree which it rendered in this ease ? In other words, can an appeal he taken from a county court, which has no equitable jurisdiction, to the superior court, and the entire nature of the case be changed by an equitable amendment ? The second question is, cannot this land be sold under the judgment against Mrs. Goolsby, the life tenant, subject, of course, to the charge thereon for the support of John K. Goolsby during his life ? If the superior court had no jurisdiction to allow the amendment and to enter up the decree, or if the land can be levied on and sold under the judgment against the life-tenant, the appointment of a receiver would be improper. These matters being at least doubtful, the judge was not bound to make such appointment. We therefore affirm the judgment. Judgment affirmed.