Rogers v. Taintor , 199 Ga. 192 ( 1945 )

1. Questions not raised in the trial court, but presented for the first time in this court, will not be decided.

2. Under the facts of this case, the order allowing compensation for the receivers before the case had been finally disposed of, was not error.

3. It can not be said, as a matter of law, that the compensation awarded the receivers was excessive.

No. 15133. April 3, 1945. On November 22, 1940, Charles E. Taintor, as guardian for Frank P. Rogers Jr., filed an equitable suit against Henry T. Rogers, alleging substantially that the defendant had for a number of years served as guardian for Frank P. Rogers Jr., but resigned on September 16, 1940, and the plaintiff succeeded to the guardianship; that the defendant and Frank P. Rogers Jr., the ward, had been named executors of the will of Frank P. Rogers Sr., but after they qualified as executors, Frank P. Rogers Jr., became insane; that the defendant had in his possession certain property of the insane ward and of the estate of Frank P. Rogers Sr., consisting in part of government bonds of the approximate value of $27,000, which he had concealed from the plaintiff, and a portion of which he had converted to his own use; that for several years the defendant has had the sole management of the estate of Frank P. Rogers Sr., has filed no annual returns as required under the will of Frank P. Rogers Sr., and unless he is restrained from dissipating the estate of Frank P. Rogers Sr., in which the insane ward is interested as a legatee, he will dispose of the assets of the estate to the detriment of the plaintiff as guardian of the insane ward; that the defendant is insolvent, the plaintiff has no adequate remedy at law, and to protect the estate of Frank P. Rogers Sr., it is necessary that a receiver be appointed. The prayers were for an injunction and the appointment of a receiver. Temporary receivers were appointed and a temporary injunction granted, and the defendant ordered to show cause on a designated date why a permanent receiver should not be appointed.

On March 6, 1944, the case was tried before a jury, resulting in a verdict for the defendant, and the judgment of the trial court overruling a motion for a new trial was reversed by this court (Taintor v. Rogers, 197 Ga. 872, 30 S.E.2d 892) because of an erroneous charge to the jury.

The temporary receivers, Charles E. Taintor and Morgan S. Belser, on December 12, 1944, filed an application to have their bonds as receivers exonerated and the funds in their hands paid into the registry of the court, and requested that reasonable fees as receivers be awarded to them. A response was filed by Henry T. Rogers, in which no objection was made to the exoneration of the bond or to the payment of the funds in their hands into the registry of the court, but the right of the court to tax the cost of the receivership against the funds in the hands of the receivers was denied.

On a hearing of the application, an attorney for the plaintiff in the original suit testified as follows: "When the receivers were appointed, the defendant refused to give them the keys to his safety-deposit box in the First National Bank, whereupon contempt proceedings were brought against him, but before a hearing was had, his attorney, Mr. Spence, agreed to accompany the receivers to the bank for the purpose of entering the defendant's box. This was done, but the receivers found nothing contained therein."

The respondent offered in evidence the original petition for receivership; and it was admitted that Henry T. Rogers, the defendant, while guardian for Frank P. Rogers Jr., and at the time of his discharge as such guardian, was under a $50,000 bond. Whereupon, the court passed an order approving the receivers' reports (which showed that they had handled funds approximating $1700, and had disbursed all these funds except $637.50), exonerating their bond, directing that the funds held by them be paid into the registry of the court, and awarding out of the funds the sum of $300 to Morgan Belser and C. Holland Feagan, whom Belser had succeeded as receiver, for their services as receivers, and deferring the determination of compensation for the services of Charles E. Taintor, the coreceiver, until the further order of the court. The plaintiff in error (the defendant in the original suit and respondent in the application for receivers' fees in the court below) excepted to this judgment "as being contrary to law and an abuse of the court's discretion." 1. When the petition for compensation was filed by the receivers, the plaintiff in error in his response contended: "(1) Defendant avers that the funds in the hands of said receivers is his personal property, and he contends is not subject to costs in this case for the reason there has been no final adjudication of the many issues involved therein. (2) Defendant further alleges that said receivers were appointed upon an ex parte presentation of said case. He respectfully contends that, had he had an opportunity of being heard prior to the appointment of receivers, the probability is that no receiver would have been appointed, as practically all of his property of material value was real estate, and the pendency of plaintiff's suit with an injunction would have preserved such property for the protection of plaintiff in the event of recovery. (3) Defendant further avers that there are many other issues involved in said case yet undecided which, he submits, are controlling. For instance, upon the trial of said case, it developed that plaintiff was a non-resident of the State of Georgia, residing in the State of California. It is contended by this defendant that the appointment of plaintiff as guardian by the Fulton court of ordinary was void for the reason that he, plaintiff, is a non-resident, and that his appointment by the court of ordinary was contrary to the laws of Georgia, as said court is without extraterritorial jurisdiction. Defendant therefore avers that, should this contention be upheld by the court, all costs incident to the receivership would fall upon plaintiff. (4) Defendant further avers that subsequent to the appointment of receivers in said case, a jury trial was had therein, which resulted in a verdict and judgment in his favor, and while said judgment and verdict was set aside upon appeal to the Supreme Court, nevertheless such reversal was not based upon the evidence, but upon an alleged error of the trial judge in his instructions to the jury. (5) Defendant respectfully contends, in view of these facts and circumstances, that the time is inopportune to pass upon the question of fees for said receivers, and he respectfully submits that further action therein should be stayed pending final adjudication of the many issues involved." The argument is made in this court that the judgment awarding receivers' fees "constitutes an abuse of the court's discretion in awarding fees against his funds for the following reasons: (1) Because it appears from the petition filed by Charles E. Taintor as guardian that he had an adequate remedy at law, and hence was not entitled to a receivership; (2) because it appeared from the original petition filed by Taintor as guardian that Henry T. Rogers, plaintiff in error, obtained his discharge from the court of ordinary of Fulton County, a court of competent jurisdiction, and no allegations were made in the original petition that this judgment of discharge from the court of ordinary was obtained by fraud, nor was there any prayer asking that the judgment of the court of ordinary be set aside; (3) because the question of costs could not be equitably determined until the case was finally terminated; and (4) because the award made to Morgan. Belser, one of the temporary receivers, was excessive and contrary to law with reference to the amount of compensation payable to receivers." The bill of exceptions excepts to the judgment "as being contrary to law and an abuse of the court's discretion." The effect of this assignment of error is to bring before this court for review the questions, and only the questions, passed upon by the trial court. "This court sits to review rulings of the trial courts, and it will not pass upon questions on which no ruling has ever been made by the trial judge." Ballard v. Waites, 194 Ga. 427, 430 (21 S.E.2d 848). See also Haynes v. Thrift Credit Union, 192 Ga. 229 (3), 233 (14 S.E.2d 871); Blount v. Metropolitan LifeInsurance Co., 190 Ga. 301, 304 (9 S.E.2d 65); McIntire v. McQuade, 190 Ga. 438 (9 S.E.2d 633); Groover v.Simmons, 161 Ga. 93 (129 S.E. 778). From what has been said herein, it appears that the first two questions raised by the plaintiff in error, to wit, that the plaintiff in the court below had an adequate remedy at law, and that the defendant in the court below had obtained his discharge as guardian from the court of ordinary, are questions not raised or presented in the trial court, but are raised for the first time by the plaintiff in error in his brief filed in this court. These questions, therefore, are not properly presented to this court, and will not be ruled on.

2. It is contended that the judgment of the trial court awarding compensation to the receivers is erroneous for the reason that the case was not finally terminated. This court, inCapital City Tobacco Co. v. Anderson, 138 Ga. 667 (2) (75 S.E. 1040), said: "In an equitable action it is the province of the judge to determine upon whom costs shall fall; and this determination will not be reversed, unless the discretion of the judge be abused. Civil Code, § 5423, and cases cited in Epps v.Thomas, 131 Ga. 65 (61 S.E. 1117); Fitzpatrick v. McGregor,133 Ga. 332 (4), 344 (65 S.E. 859 [25 L.R.A. (N.S.) 50]). . . The receiver having performed all his duties, for which compensation was allowed him in the order, there was no reason why he should have been required to wait until the case had been disposed of before an order should be passed for the payment of his fee; and the judge was not without jurisdiction to grant the order when he passed it." There is no merit in this contention.

3. The plaintiff in error contends that the compensation allowed the receivers "was excessive and contrary to law with reference to the amount of compensation payable to receivers." It is contended that the compensation should have been limited to the scale of fees provided for in the Code, § 55-315. This section, after setting out the scale of fees to be allowed receivers, provides: "Provided, that in case the business of an insolvent person, firm, or corporation shall be continued and conducted by a receiver, the judge may allow compensation for such services in lieu of commissions as may be reasonable, not exceeding the compensation paid by persons in the usual and regular conduct of such business: provided further, that in all cases the presiding judge, or other competent tribunal, shall allow such compensation to the attorney or attorneys filing the original petition, and the receiver or receivers appointed thereunder, as their services are reasonably worth." The petition in the instant case alleged that the defendant was insolvent. Whether in fact he was or was not insolvent is not otherwise mentioned in the record. The actual cash handled by the receivers is shown in the record, and appears to have consisted mainly of rentals collected. The character or value of the property handled by the receivers does not appear. The receivership continued over a period of approximately four years. We can not say, under these circumstances, that the trial judge abused his discretion in the amount of compensation allowed the receivers.

Judgment affirmed. All the Justices concur.