Tanner Grocery Co. v. Stewart

Russell, C. J.

(After stating the foregoing facts.)

C. H. Stewart and the City Supply Company, as plaintiffs, asked a judgment against Caswell, alleging that their action was based upon notes containing a waiver of homestead, and that Caswell had had set apart to him a homestead exemption of $1435 which he had assigned to the plaintiffs in error, reserving to himself an interest therein in fraud of the petitioners and for the purpose of hindering, delaying, and defrauding his creditors. The evidence, as will appear from the statement of facts, was in conflict upon this point. There was evidence sufficient to have authorized a finding that in assigning the exemption Caswell had reserved an interest to himself, and that he was, at the time of the hearing, in possession of the stock of goods which had been sold and converted into cash. On the other hand Caswell and the other defendants vigorously denied that the transfer had been induced by, or contemplated, any benefit flowing to Caswell.

The fact in issue is perhaps the most important which will be considered by the jury upon a trial, and we think the trial judge wisely continued his previous restraining order until this determining fact could be passed on by a jury. The grant and continuance of injunctions, by a well-settled rule, rests in the sound discretion of the court. Civil Code (1910), § 5497; Kirkland v. Ferris, 145 Ga. 93 (88 S. E. 680); Hudson v. Stiles, 146 Ga. 16 (90 S. E. 379); Bullard v. Planters Warehouse &c. Co., 140 Ga. 325 (78 S. E. 848).

Exception is also taken to the fact that the judge, in' passing an order allowing the intervenors to have the custody of the $1435 upon giving bond, ordered a bond in which the liability of the intervenors would probably be greater than the amount of the fund claimed by the intervenors. The amount of the debt claimed by the plaintiffs is $1688.77. However the intervenors are estopped to question or complain of the order of the judge in this case in this respect, since, as will appear from the statement of facts, they had voluntarily offered to give bond to pay any judgment that the jury may find or the court may award in this case. Therefore, while under a strict construction of the terms of § 5502 of the Code there might be doubt as to the wording of the bond, the waiver to require a strict compliance with this section as contained in the offer of the intervenors to make a bond resolves all doubt.

Exception is taken to the fact that the trial judge erred in continuing the receiver. It cannot be held that the judge erred under the present record. It is a well-settled rule that this court will not consider upon review any question which was not presented to the lower court. In the answer of the intervenors, now plaintiffs in error, and the only plaintiffs in error, no reference whatever is made to the subject of a receiver, for the word “receiver” does not once appear in that answer. No other pleading in the case in the progress of the hearing presented the question as to the propriety of the receivership which existed before the intervenors were made parties in the ease. The exception which was made in the bill of exceptions appears for the first time in the writ of error. If the question had been presented to the judge of the lower court, his finding might have been different. But certainly, where the question was not presented to him, it would be wrong to question the propriety of the court’s judgment upon a question which was not even suggested to him.

Judgment affirmed by operation of law.

Beck, P. J., Atkinson and Hines, JJ.

Plaintiffs as unsecured creditors of their bankrupt debtor, being without judgments or other liens, and having no claim to the property by reason of fraud in the creation of their demands or otherwise, sought to have set ■aside and canceled the assignment by the bankrupt to the intervening defendants of his homestead exemption which had been allowed and set aside to him by. the bankrupt court, on the ground that the assignment was fraudulent and void, because there was reserved to the debtor an interest in the homestead exemption property so assigned. Plaintiffs further prayed for an injunction restraining the trustee of the bankrupt from turning over the homestead property to the assignees, and for a receiver to take charge thereof and hold the same subject to the final judgment rendered in the case. The complaining creditors being without judgment or other liens, and having no claim to the property by reason of fraud in the creation of their demands, or otherwise, no sufficient cause was shown for an interlocutory injunction and receiver as to this property. The assignees of the homestead property are solvent and amply able to respond to any judgment which the complaining creditors may obtain against them, if they succeed-in setting aside their assignment upon the ground upon which it is attacked. It is now the well-settled general rule, that a court of equity will not interfere at the instance of complaining creditors, before judgment and .without liens, to set aside a conveyance of property alleged to have been made by a debtor for the purpose of defrauding his creditors; and under such circumstances a court of equity will not enjoin the sale of the property by the assignees or appoint a receiver to take charge thereof. Cubbedge v. Adams, 42 Ga. 124; Mayer v. Wood, 56 Ga. 427; Stillwell v. Savannah Grocery Co., 88 Ga. 100 (13 S. E. 963); Civil Code (1910), § 5495; Atlanta &c. R. Co. v. Carolina Portland Cement Co., 140 Ga. 650 (79 S. E. 555); Smith v. Manning, 155 Ga. 209 (3a) (116 S. E. 813). In Stillwell v. Savannah Grocery Co., supra, Judge Bleckley well said: “There can be no doubt that, generally, creditors complaining of a fraudulent conveyance of his property by their debtor are not entitled to an interlocutory injunction and receiver. The present case falls within this general rule, inasmuch as there is no allegation of the insolvency of the alleged fraudulent purchasers, Stillwell, Millen & Co. The ease of Mayer v. Wood, 56 Ga. 427, is a direct authority upon the subject, so far as an injunction is concerned; and the principle of that case fairly carried out will extend also to the element of appointing a receiver. Where injunction to restrain a solvent purchaser from disposing of the property embraced in his fraudulent purchase would not be granted, we can see no reason why a receiver should be appointed. That the solvency of the purchaser would be security against ultimate loss by the attacking creditors in case they should establish their debts and prove the fraud, would stand as well for a reason against appointing an ad interim receiver as against granting an injunction.”

The position taken that the question whether the plaintiffs made a ease for the appointment of a receiver or not was not passed upon by the court below, and for this reason will not be considered by this court, is utterly without merit. The hearing before the judge was one for the determination of the question whether injunction should be granted and a permanent receiver appointed, the court having appointed a temporary receiver upon an ex parte showing. The purchasers and assignees of the homestead property intervened in the case and were made- parties defendant. In their answer to the petition of plaintiffs they denied the allegations upon which the rights of the plaintiffs for injunction and receiver were based. They specifically prayed that the property in question be turned over to them under their assignment thereof by their bankrupt debtor. The trial judge appointed a receiver; and in their bill of exceptions they specifically assign error on this judgment ap-. pointing a receiver, on the ground that no case under the evidence was made which would authorize the appointment of a receiver. The intervening purchasers were clearly contesting all the rights which the plaintiffs asserted; and to us it is inconceivable how it can be said that the judge did not pass upon any objections urged by them to the appointment of a receiver.

The further contention, that the purchasers are now estopped from complaining of the appointment of a receiver, on the ground that they had offered to give bond, and that in pursuance of such offer the court had granted them this privilege, is likewise untenable. Under the proper and reasonable construction of the answer of the intervening purchasers, they denied the right of the plaintiffs to the extraordinary remedy of a receiver; but prayed that, if the court found that a receivership should be granted, they be given the privilege of giving a bond to prevent such receivership. They cannot by any fair rale be held to have consented to the receivership, and to the giving of a bond to vacate the same. Having denied the right of the plaintiffs to the receivership, they will not be precluded from excepting to the judgment appointing a receiver, on the ground that they asked to-be allowed to give bond if the court, over their objection, should appoint a receiver.

For the above reasons we think the trial judge erred in granting a receiver; and feel constrained to dissent from the opinion of the Justices favoring an affirmance.