Allen v. Allen , 198 Ga. 267 ( 1944 )

The averments of fact in the motion to dismiss the writ of error are admitted in the plaintiff in error's written response to the motion. Thus it appears that, after suing out the writ of error in this case, the plaintiff in error filed a petition for receiver against the defendant in error and others, reciting that she, the plaintiff therein, was the owner of a judgment lien against the defendant in error by virtue of a decree (the reference being to the decree under attack on the instant writ of error), as well as a judgment against him for alimony; and praying, among other things, that a receiver be appointed to take possession of all the properties of the defendant, "for the purpose of satisfying your petitioner's said judgments or decrees." It further appears that on said petition a receiver was appointed for all the assets of the defendant. The motion to dismiss the writ of error is based on the contention that the plaintiff in error's acts, as above recited, are inconsistent with her right to have reviewed the validity of the decree in the instant case or the correctness of the verdict on which the same was rendered. Held:

The motion is controlled by the ruling in Grizzel v. Grizzel, 190 Ga. 219 (9 S.E.2d 247), that, "As a general rule, any voluntary act by a party, with knowledge of the facts, by which he expressly or impliedly recognizes the validity and correctness of a judgment against him, will operate as a waiver of his right to bring error to reverse it, as where he receives affirmative relief under a judgment or takes a position inconsistent with his right of review."

Writ of error dismissed. All the Justicesconcur.

No. 14942. SEPTEMBER 11, 1944. The defendant in error, E. W. Allen, filed a motion to dismiss the writ of error of Mrs. E. W. Allen, on the following grounds: On June 9, 1942 (1944)? Mrs. Allen filed in Fulton superior court a petition for receiver against E. W. Allen et al., in a case numbered 147,282, in which she claimed to be the owner of a judgment lien against E. W. Allen by virtue of the following decree of said court, rendered on February 4, 1944, in suit numbered 136,606: "The jury having rendered a verdict finding in favor of the plaintiff [Mrs. Allen] and against the defendant [E. W. Allen] in the sum of $3917.78, it is ordered, considered, and adjudged, that the plaintiff have and recover of defendant said sum of $3917.78 principal, together with interest thereon from November 24, 1917, to this day in the sum of $7184.86, with future interest on said principal sum at the rate of seven per cent. (7%) per annum." She further alleged in said petition that the printing machine and equipment, the East Point lot, and the one-half undivided interest in the DeKalb County property are not sufficient in market value to pay said decrees in favor of the petitioner against the defendant. Among the prayers of her petition was one that a receiver be appointed for E. W. Allen, and be directed to take possession of any and all assets of his which can be reduced to possession; that the defendants hold any stock acquired by them from him, which may stand in their names or be claimed by them, in trust for Mrs. Allen, for the purpose of satisfying said judgments and decrees; that any and all assets impounded be administered for the benefit of the petitioner and any and all creditors of the defendant Allen in accordance with rank and priority as may be established by law; that the court trace all of Allen's assets of every kind into whatever person, firm, or corporation the same have been transferred since November 29, 1941, and administer the same by the receiver for the use and benefit of the petitioner; and that she have such other and further relief as the court deems meet and proper. Based upon that petition, the court passed an order with reference to the receiver as follows: "It is ordered that E. E. Phillips, Esq., be appointed receiver of any and all assets of E. W. Allen under bond of $5000."

The movant shows that the decree of February 4, 1944, above quoted, is the same as the one appealed from in this case, and was based upon the verdict to which the motion for a new trial was directed; and that, with full knowledge of the facts, Mrs. Allen recognized the correctness of the judgment against her, has used that part of said judgment and decree, and has taken a position inconsistent with her right of review; that, for this reason, she is estopped from prosecuting this appeal; and that the writ of error should be dismissed.

In her written response, Mrs. Allen does not deny any of the averments stated in the motion to dismiss. She attached to her response a copy of her receivership suit, referred to in the motion, from which it appears that she averred that she also held against E. W. Allen an alimony judgment for a stated amount, based on a different proceeding.