Continental Trust Co. v. Sabine Basket Co. , 1928 Ga. LEXIS 34 ( 1928 )

Hines, J.

All parties to a cause who are interested in sustaining the judgment of the court below are indispensable parties in this court. Baker v. Thompson, 78 Ga. 742 (4 S. E. 107); Kahn v. Hollis, 124 Ga. 537 (53 S. E. 95); Ray v. Hardman, 146 Ga. 718 (92 S. E. 211); Edwards v. Wall, 153 Ga. 776 (113 S. E. 190); Clark Milling Co. v. Simmons, 155 Ga. 505 (117 S. E. 437); Morris v. Wilson, 159 Ga. 522 (126 S. E. 795); Greeson v. Taylor, 160 Ga. 392 (128 S. E. 177). This rule has been applied in appeals to all intervening parties to a suit. 3 C. J. 1014, § 970, C; Swearingen v. McDaniel, 12 Rob. (La.) 203; Hayden v. Mitchell (Tex. Civ. A.), 24 S. W. 1085; Fairfield v. Binnian, 13 Wash. 1 (42 Pac. 632); Old Nat. Bank v. O. K. Gold-Min. Co., 19 Wash. 199 (52 Pac. 1065); Wiseman v. Eastman, 21 Wash. 163 (57 Pac. 398); Miller v. Richards, 83 Cal. 563 (23 Pac. 936); Lindebaum v. Coale (Iowa), 99 N. W. 162; Gray’s Harbor Commercial Co. v. Wotton, 14 Wash. 87 (43 Pac. 1095). But this rule is not applicable to a person not a party to the case in the trial court. Chason v. Anderson, 119 Ga. 495 (46 S. E. 629). So where interventions were allowed by orders of the court entered thereon, but were not filed until after the judgments excepted to were recorded and a bill of exceptions had been sued out to review such judgments by the losing parties, intervenors in such interventions were not such parties of record as made it necessary for the excepting parties to make them parties defendant to the bill of exceptions. Wiseman v. Eastman, supra. Intervenors, whose interventions were allowed after the judgments excepted to had been entered, should have become parties of record by filing their interventions before the bill of exceptions was sued out, in order to make them necessary parties defendant in the bill of exceptions. Kidder v. Fidelity Ins. &c. Co., 105 Fed. 821; Branan v. Baxter, 122 Ga. 222 (50 S. E. 45). It follows that the bill of exceptions will not be dismissed because such intervenors were not made parties defendant in error.

Plaintiffs in error having demurred generally to the petition, and having excepted to the judgment overruling it, the bill of exceptions was brought to review a final judgment in the case, and the writ of error will not be dismissed upon the ground that the case is still pending in the court below. Civil Code (1910), § 6138.

““A court of equity may appoint a receiver to take possession of, and hold subject to the direction of the court, any assets charged with the payment of debts, where there is manifest danger of loss, or destruction, or material injury to those interested.’ Civil Code (1910), § 5479. However, “Creditors without lien can not, as a general rule, enjoin their debtors- from disposing of property, nor obtain injunction or other extraordinary relief in equity. ’ § 5495. Moreover, “Equity will not take cognizance of a plain legal right, where an adequate and complete remedy is provided by law.’ § 4538. And furthermore, “The power of appointing receivers and ordering injunctions should be prudently and cautiously exercised, and except in clear and urgent cases should not be resorted to.’ § 5477. Coolewahee Co. v. Sparks, 148 Ga. 211 (96 S. E. 131). And applying the foregoing principles, the plaintiff without a lien was not entitled to the appointment of a receiver.” Coe Mfg. Co. v. Dublin & Laurens Bank, 160 Ga. 675 (128 S. E. 908). It follows that the court erred in overruling the demurrer of the plaintiffs in error to the petition.

Judgment reversed.

All Uie Justices concur, except Hill, J., disqualified.