Blair v. Cent. City St. R. Co

• Decision Date: 15 February 1892
• Citation: 88 Ga. 535,15 S.E. 12
• Parties: Blair et al. v. Central City St. R. Co.,(Bright, Intervener.)
• Court: Georgia Supreme Court

15 S.E. 12

88 Ga. 535

Blair et al.

v.Central City St. R. Co., (Bright, Intervener.)

Supreme Court of Georgia.

Feb. 15, 1892.

Intervention—Pleading—Amendment.

Where property is under the control of the court in the hands of a receiver, and a creditor of the defendant intervenes by petition pro interesse suo, the petition is amendable at any stage of the proceeding, so as to develop all the material facts out of which the substantial rights of the petitioner as a creditor arose. Where the claim set forth originally was a promissory note given by an officer of the corporation after the receiver was appointed, an amendment setting forth the consideration of the note, and the contract under which that consideration was realized by the company before the receiver was appointed, is allowable.

(Syllabus by the Court.)

Error from superior court, Bibb county; A. L. Miller, Judge.

Suit by Blair and others against the Central City Street Railroad Company. D. M. Bright intervened. On a judgment denying Bright's leave to amend his intervention he brings error. Reversed.

Jas. L. Anderson, for plaintiff in error.

Hardeman, Davis & Turner, for defendants in error.

Lumpkin, J. Upon the petition of Blair et al. in behalf of themselves and such other creditors as might be made parties the property of the Central City Street Railroad Company was placed in the hands of a temporary receiver. Bright was made a party to the case on his own petition in the nature of an intervention, in which he alleged that the defendant was indebted to him upon a promissory note, the consideration of which, as recited therein, was "value received as commission on loan" to defendant. This note was executed and delivered to Bright after the appointment of the receiver, but was given for a debt which had accrued before that time. On the day of the hearing to determine whether or not a permanent receiver should be appointed, Bright offered to amend his intervention by alleging in detail the facts showing how his' debt against the company was created, and that the note, when made, was simply an acknowledgment of a pre-existing debt, and given to liquidate the amount thereof. No formal action was then taken on this offered amendment, but it seems to have been treated as duly filed and made. The court passed an order discharging the temporary receiver, but allowing the petition to proceed as an ordinary suit as to the contested and unsettled claims therein set forth against the company. The claims of Bright and one other creditor were the only ones left. When the case came on to be tried before the jury. Bright again asked leave to amendhis intervention by alleging in still greater detail the facts concerning his claim, including averments that the note was not given in payment or settlement for his services rendered the company, but merely as an acknowledgment of its indebtedness to him for services rendered and performed before the appointment of the receiver, and praying judgment for the principal and interest due him on the contract for those services. The amendment was refused on the ground that the original petition set out no cause of action, and contained nothing to amend by, and a demurrer to the intervention was then sustained for the reason that the plaintiff, Bright, could not proceed...