Cohen v. Meyers, Cohen & Co. , 42 Ga. 46 ( 1871 )

McCay, J.

It is well settled in this Court, that the judgment of the Court below, in a proceeding of this character, will not be. interfered with, hastily. The Code, section 3150, expressly places these interlocutory proceedings in the discretion of the Circuit Judge, and this Court will, in its review of his actions, give great respect to his opinion upon the facts.

As a matter of course, if there be no equity in the bill, if the Court has no jurisdiction of the case, that is another matter. But it is a mistake to suppose that, if the answer, in terms, denies the charges in the bill, the Judge is required, by law, to revoke his order granted ex parte. He is to take the whole case, to consider the credibility of the answer, its consistency with itself, and with the nature of the case; and if, on the whole, it appear that justice requires things to remain in statu quo until a jury can pass upon the case, the order ought to stand.

We cannot help feeling that the Judge, in this case, is about right. The admitted facts are suspicious, and we think the answer only makes them more so. It is a little odd that such a purchase should have been made, and the loss of this money, as stated in the answer, with such ready means at hand to prove it, if true, does not, in our judgment, look exactly natural, and worthy of full belief. We can easily see how the Judge should feel that this matter ought to be passed upon by a jury, and that justice requires the property to be kept safe until the hearing.

We are not perfectly satisfied that this is a case not falling within the rule that a general creditor cannot ask the preventive aid of a Court of Equity before he gets a judgment at law. But there are facts stated and charged in the bill which, if true, give these creditors a peculiar equity. It is charged that Golinski bought these goods, with intent to defraud the complainants, that he never intended to pay for them, and that Cohen hnew of this, and acted upon it, with the avowed purpose of making money out of the transaction. If he was in complicity with Cohen before he bought the goods, or if Cohen knew, when he bought, that Golinski had this intent, this case would be entirely out of the rule to which we have referred. Then these goods never, in equity, belonged to Golinski; he obtained them by fraud, and with a fraudulent intent, and the jurisdiction of a Court of Equity is complete.

"We think there is enough charged in this bill to justify this, and that the whole case ought to go on for a hearing on its merits.

Judgment affirmed.