Crawford v. Ross , 39 Ga. 44 ( 1869 )

McCay, J.

1. The appointment and discharge of Receivers, as well as the passing of other orders in Chancery, the object of which is to protect the property, or to preserve things in statu quo, until a regular hearing can be had, are, in th§ir nature, such powers, as to be of any practical ■ use, must be exercised in vacation, by the Chancellor, and for this and the like purposes, a Court of Chancery is always open: Code, 3043, 4163. Such always has been the practice in this State. In these cases, the action of the Chancellor is only to keep things in statu quo, and his decision is not.final. The same public policy, which makes it proper to take action in such cases on an emergency, also requires that it should be in the power of the Chancellor, on motion and notice, to undo and vacate.

Nor was the Act of March 16th, 1869, so far as it applies to Receivers, at all necessary. It is true, the passage of such an act implies that the Legislature so thought. But if the law were, in fact, so before, the passage of the Act of March 16th, 1869, could not alter the truth of the ease. It is not in the power of the Legislature, under our system, to enact, in any way, that the law was so and so at any past time: Constitution, art. 1, sec. 31.

Nor was this the intent of the Act referred to. It was passed to make clear, for the future, what some persoms thought doubtful; that is all. We have no doubt as to the law before the Act was passed, and, so far as it applies to the discharge or alteration of orders appointing Receivers, we think it but an affirmance of the law as it has long been in this State.

2. and 3. The exercise of the extraordinary powers granted to the Chancellor, of injunction, ne exeat, appointment of Receivers, etc., is a very delicate and responsible duty. It is a serious interference, -without the verdict of a jury, and without a regular hearing, with the prima Jade rights of the citizen, and ought only to be granted to prevent manifest wrong.

When a hearing is had of the other side, which the law grants as a matter of right, it is in the discretion of the Judge, to revoke or modify his order, and it will take a strong case to induce this Court to interfere to reverse his judgment. The statute confers this right, and imposes this duty on the Circuit Judge. We have no power to interfere, unless his judgment is so manifestly wrong as to be illegal. This Court is not a Court of Appeal, but a Court of Errors. Its functions are not to review matters confided to the Circuit Judges, and exercise our judgment in the premises; but to correct the errors of law they may commit. In matters left, by,law, in his discretion, although we might, perhaps have, made, the facts, a different judgment, this Court will not reverse the Judge, unless his judgment be an error of law; or, if the case be one turning only on facts, unless his discretion has been manifestly hasty, and an abuse of that wise deliberation proper in a judicial officer.

We think, in this case, that the Judge might well, under the answer, have done as he did. From all the facts, it appears that, on the whole, this defendant has done very well by his wards, and that there is very little danger of any loss.

The high prerogative act of taking property out of the hands of one, and putting it in pound, under the order of a J udge, ought not to be taken, except to prevent manifest wrong, imminently impending. And when the Judge, on the coming in of the answer, finds that the danger is not imminent, and that-there was no pressing necessity for the order, it is very proper for him to revoke or modify the order on such terms as he thinks wise. We think, in this case, he has not abused that discretion and judgment which the law has confided to him.

4. We would, however, suggest that, if the case is one of doubt, or if the interest is important, and the Judge is satisfied that the complainant desires to file a bill of exceptions,he ought to give a reasonable time, so that the parties may be kept in statu quo,

We are, however, not disposed to lay down any rule. These matters are, as the law now stands, in the wise discretion of the Chancellor, and it is only in the abuse of that discretion in matters of fact, that this Court gets jurisdiction.

Judgment affirmed.