Syllabus by the Court.
1. Service under Rule 26, on the attorney of record for any party, is sufficient service notwithstanding the provisions of the Code, section 81-213.
2. "Many facts, especially those resting peculiarly within the knowledge of the
opposite party, may be alleged in general terms. * * *"
3. (a and b) The possession of cancelled checks raises a presumption that they were paid in due course. The possession of a deposit slip in a bank purporting a deposit in the regular course of trade raises a presumption that the deposit was made as the deposit slip indicates.
(c and d) The court did not err in requiring the defendant to answer certain questions pertaining to the defendant on the ground that they would tend to incriminate him, nor in admitting the answer of the defendant filed in the original suit.
(e) Even in a contempt proceedings requiring a defendant to deliver up or account for his assets to a receiver, and where a voluntary transaction between him and his wife is attacked for fraud, the burden shifts to the defendant to show the bona fides of such transaction.
4. A judgment for contempt of a court order will not be disturbed unless there be a flagrant abuse of discretion.
Error from Superior Court, Fulton County; Frank A. Hooper, Judge.
Suit by Dixie Paint & Varnish Company against F. D. Beebe to require defendant to account for certain funds and to enjoin defendant from disposing of any of his property or assets or withdrawing directly or indirectly through agents any amounts from any bank accounts which he controls or in which he has an interest until further notice of court, wherein Hoke Smith, Jr., was appointed as temporary receiver to take charge of assets of defendant. To review a judgment adjudging defendant in contempt, the defendant brings error.
Affirmed.
We shall refer to the Dixie Paint and Varnish Company as the plaintiff, and F. D. Beebe as the defendant, and Hoke Smith, Jr., as receiver. The plaintiff, a corporation of this State, with its principal office and place of business in Brunswick, Georgia, instituted an equitable proceedings against the defendant, trading as "S. and
W. Paint Products Company." Omitting the formal paragraphs of the petition, it alleges:
"3. Said defendant is in possession of funds of petitioner amounting to $17,172.45 by virtue of the facts hereinafter set forth. Said defendant has no right to retain said funds, but holds said funds in trust for your petitioner and is legally obligated to deliver same up to petitioner.
"4. Defendant was an employee of petitioner conducting a wholesale paint business under the trade name of 'S. and W. Paint Products Company' at 539 Court-land Street, N.E., Atlanta, Georgia, in premises which were under lease to your petitioner.
"5. The defendant was employed by petitioner under a working arrangement whereby the defendant procured orders from customers, forwarded such orders to petitioner who made shipments against such order direct to customers. Collections for such shipments were made by defendant and in accordance with the working arrangement referred to above, were to be remitted by defendant to your petitioner.
"6. The aforesaid working arrangement between petitioner and defendant has been in operation for approximately two years and until the events recounted hereinafter was satisfactorily executed by all parties thereto.
"7. Under the aforesaid arrangement, defendant procured orders from certain customers, a list of such orders being attached hereto marked Exhibit A and made a part hereof.
"8. Pursuant to the aforesaid working arrangement petitioner made shipment to the aforesaid customers of the items ordered by them and invoiced such shipments to defendant.
"9. Defendant has collected the proceeds of such sales from said customers.
"10. The total proceeds of such sales collected by defendant amounted to $23,-412.36.
"11. On April 24, 1947, defendant surrendered to petitioner certain merchantable wares to which he individually held title of the agreed total value of $6,239.91 to be credited against his liability to peti-tioner for the balance due as set forth in the preceding paragraph of this petition. This payment reduced the amount of such liabilities to $17,172.45.
"12. Despite repeated demands therefor, defendant has failed and refused to remit to petitioner the funds of petitioner which he holds, or to make any accounting to petitioner for such funds.
"13. Defendant is insolvent.
"14. Petitioner alleges upon information and belief that defendant, either in his own name, or in his wife's name, or in their joint names, or in a trade name has accounts in the Citizens and Southern National Bank in Atlanta, Georgia, and in the Lewis State Bank in Tallahassee, Florida. Petitioner further alleges on information and belief that its funds which defendant holds illegally are concealed in said accounts and petitioner is apprehensive that defendant will dispose of said funds so that they can not be traced unless he be enjoined and restrained from doing so.
"15. Petitioner for several days past has attempted to contact the defendant, but has been unable to locate him. Defendant's office at 539 Courtland Street, N. E., and his residence at 6 Pine Circle, both in Atlanta, Georgia, appear to have been vacated. None of defendant's family and none of his office force can be located. Accordingly, the petitioner alleges on information and belief that the defendant has absconded.
"16. Petitioner is without adequate legal remedy and unless it be given the assistance of a court of equity its rights and property will be without protection."
Aside from the prayer for process and service on the defendant, the prayers were:
"b. That defendant be restrained and enjoined from disposing of any of his property or assets or withdrawing directly or indirectly through agents any amounts from any bank accounts which he controls or in which he has an interest until further order of this court.
"c. That a temporary receiver be appointed to take charge of the assets of defendant, and that defendant be required to show cause on a day certain why the
appointment of such receiver should not be made permanent.
"d. That defendant be required to account to petitioner for the funds of petitioner which he holds as set forth above.
"e. That petitioner have judgment against defendant in the amount of $17,-172.45 and costs of court.
"f. That petitioner have such other and further relief as to the court may seem proper."
This petition was filed on the 30th day of April, 1947. The court sanctioned the petition on the 20th (30th?) day of April, 1947. The court appointed a temporary receiver, ex parte, and restrained the defendant, until further order of the court, from "disposing of any of his property or assets, and from withdrawing, directly or indirectly through agents, any amount from any bank accounts which he controls or in which he has an interest. * * *" The defendant was required to show cause on the 30th day of May, 1947, why the prayers of the petitioner should not be granted and the receivership continued, "and why the defendant should not be required to account to the petitioner as prayed." On May 28 thereafter, the defendant filed his answer, omitting the formal parts, as follows:
"2. The allegations of paragraphs 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, and 16 of the petition are denied.
"3. For lack of sufficient information the allegations of paragraphs 9 and 10 can neither be admitted nor denied because of the large volume of business defendant has done and the large amount of money he has paid petitioner covering many transactions, and because petitioner and the receiver appointed in this case have seized all of defendant's records so that it is impossible for this defendant without records to say what sales are covered by the statement attached to plaintiff's petition and whether or not they were covered by checks remitted to petitioner by defendant.
"4. For further plea and answer defendant says that he has never been employed by plaintiff in any capacity; that he has been engaged in business for himselfunder the trade name of S and W Paint Products Company; that defendant has purchased from petitioner an open account and in turn has sold on credit and for cash, extending credit where defendant felt safe in extending credit, and he has operated as an independent contractor. If defendant is indebted to plaintiff in any amount it is for credit extended and not by virtue of any employer-employee relationship between petitioner and defendant.
"5. It is true that petitioner has shipped goods direct from its warehouse to this defendant's customers, but only as directed by this defendant, the invoices in all cases being made to this defendant, and the customers to whom the shipments were made were invoiced and billed by this defendant. Such customers were not indebted to petitioner but to this defendant. Such customers did not know petitioner in the transaction and not apply to petitioner for credit and were not extended credit by petitioner. They purchased from this defendant on credit extended by this defendant, and paid this defendant for the merchandise purchased although delivered by shipment direct from petitioner's warehouse pursuant to directions from this defendant. All sales made by this defendant were collected by this defendant, and the total proceeds of sales made by this defendant were far in excess of the amount stated in paragraph 10 of plaintiff's petition.
"6. It is admitted that petitioner has demanded payment of the amount claimed in paragraph 11 of its petition, but this defendant has failed and refused to pay said amount because he denies indebtedness of this amount to petitioner.
"7. For further plea and answer this defendant alleges that at the request of petitioner this defendant went to petitioner's...
