Coker v. Norman , 162 Ga. 351 ( 1926 )

Atkinson, J.

1. The custody of property by the receiver of the court is the custody of the court. One who dispossesses the receiver of property consigned to him by the court dispossesses the court, and of course becomes in contempt of court; and he may be punished for contempt, and the property may be restored. Wikle v. Silva, 70 Ga. 717; 13 C. J. 21, § 26, note 14. A contempt of court being complete by dispossessing the receiver, the fact that no injunctive order has been passed does not affect the case.

2. A judge of the superior court having, in vacation, appointed a receiver to take possession of any fund, or property, in litigation, may, in vacation, enforce the delivery of such fund or property to the receiver, by attaching and imprisoning any party refusing obedience to his order. Cobb v. Black, 34 Ga. 162. The foregoing ruling was based on the construction of the express provisions of the code (Civil Code (1910), §§ 5475, 4849, 4850, 4644), which were held to have authorized the judge to grant an order at chambers punishing a respondent for contempt for refusing to deliver property to a receiver as ordered by the court. Upon principle the same rule applies where the refraction consists in taking the property from the custody of the receiver without authority of the court, after it has been in possession of the receiver.

No. 5002. June 19, 1926.

(а) The case differs from Fountain v. Dorminey, 147 Ga. 574 (94 S. E. 1014), and Tucker v. Huson Ice &c. Works, 142 Ga. 83 (82 S..E. 496), which did not involve a contempt based on interference with possession of a receiver, or the exercise of jurisdiction on other grounds authorized under the above-mentioned sections of the code.

(б) The judge did not err in exercising jurisdiction in vacation, and in adjudging the respondent in contempt of court and ordering restoration of the property to the receiver.

3. The neglect or refusal of the defendant to comply with the order of the court, requiring him to pay temporary alimony, pending the divorce, does not authorize the court to deny to the party his right to defend the libel. Cason v. Cason, 15 Ga. 405. See also Hovey v. Elliott, 167 U. S. 409 (17 Sup. Ct. 841, 42 L. ed. 215) ; Trough v. Trough, 59 W. Va. 464 (53 S. E. 630, 4 L. R. A. (N. S.) 1185, 115 Am. St. R. 940, 8 Ann. Cas. 837). By analogy the neglect or failure of an intervenor, in an equity suit for receiver and other relief, to purge a contempt for disturbing the court’s possession of the property in the custody of a receiver does not afford ground for dismissing the intervention. In so far as the judge ordered dismissal of the respondent’s intervention in the equity suit for failure to purge the contempt, the judgment was erroneous.

Judgment affirmed in part and reversed in part.

All the Justices concur. MoFlreaih & Scoit, for plaintiff in error. W. T. Moyers, Fuller & Bell, and Alston, Alston, Foster & Moise, contra.