Atlanta Northern Railway Co. v. Harris , 147 Ga. 214 ( 1917 )

Beck, J.

(After stating the foregoing facts.) We are of the opinion that the court erred in granting compensation to the receivers and taxing the same against the railway company; for we are of the opinion that the court erred in entertaining the cross-petition of W. M. Harris for the appointment of receivers. This cross-petition did not deal' with matters that were germane to the original petition filed by the railway company, in which injunction was sought against the enforcement of the execution which Harris had had issued upon the judgment of $2500 obtained by him in a suit for damages. The original equitable petition filed by the railway company to enjoin the enforcement of that fi. fa. by a levy upon its property was based upon the theory that it had given a good supersedeas , bond and had complied with the terms of the law, and for that reason was entitled to a supersedeas of the execution; and it was based upon the further contention that even if the railway company was not entitled to a supersedeas, the plaintiff in fi. fa. could not levy his common-law execution upon the property which he sought to subject, because the defendant company was a public utility corporation, and to allow the enforcement of the fi. fa. in the way in which it was undertaken to be enforced would interfere with tire performance by the company of its duties to the public. The trial judge had granted the injunction against the enforcement of the fi. fa. by levy, and from that judgment granting the injunction the plaintiff in the common-law fi. fa. had taken an appeal to this court, and after a hearing here this court had reversed the judgment and decided that the railway 'company was not entitled to an injunction against the enforcement of the fi. fa. The remittitur in that case was duly filed in Cobb superior court, and after the filing of the same the amendment to the answer of the defendant in the railway company’s equitable suit was allowed and entertained and the receivers were appointed upon the prayers contained therein. As we have said above, this was error, because, in the first place, the equitable proceeding instituted by the railway company to prevent the enforcement of the common-law execution was virtually disposed of. True, it had not been dismissed and no judgment upon a final hearing had been entered, but the issue made by the equitable petition and the answer thereto was completely disposed of by the adjudication in this court. -The record in the equitable proceeding had been made up and passed upon, and nothing further could have been done in the case except to take formal orders disposing of it at the trial term. Whether the defendant could have amended its answer at all at this stage of the proceeding it is not necessary to decide; but we are clear that it was not competent for him to file a cross-petition containing matters not germane to the matters contained in the original petition. “A cross-bill must be confined to the subject-matter of the original bill.” Josey v. Rogers, 13 Ga. 478. “A cross-bill is a bill brought by a defendant against a complainant or other parties in a former bill depending, touching the matters in question in that bill.” McDougald v. Dougherty, 14 Ga. 674. “The rule in equity is that the matter contained in the cross-bill must be germane to the matter in the original bill.” Brownlee v. Warmack, 90 Ga. 775 (17 S. E. 102). As to the time when the cross-bill should be filed, see Josey v. Rogers, supra. “An answer in the nature of a cross-bill which sets up matters of defense not germane to the case made by the plaintiff’s petition is not maintainable.” ' Johnson v. Stancliff, 113 Ga. 886 (39 S. E. 296). The original petition in the railway company’s suit for injunction made a claim for injunctive relief upon certain specified facts therein set forth, and the cross-petition set up matters in no way germane to that, and therefore was not maintainable, and the court was without a right to appoint receivers upon that cross-petition. Anil being without the right to appoint the receivers for the property of the defendant company, it follows that the court could not allow the receivers, wrongfully appointed, compensation to be taxed. against the railway company. If, under the facts alleged in the cross-petition as to the insolvency of the railway company, the plaintiff in the common-law execution was entitled to the appointment of a receiver, it should have been upon an original proceeding instituted in the county of the residence of the corporation, and not upon this cross-petition, which is in the nature of ancillary proceedings, and which was not germane to the original petition.

Judgment reversed.

All the Justices concur.