Burchard v. Boyce

• Citation: 21 Ga. 6
• Decision Date: 31 January 1857
• Docket Number: No. 2.,2.
• Parties: Joseph F. Burchard, plaintiff in error. vs. Samuel J. Boyce, defendant in error.
• Court: Supreme Court of Georgia

21 Ga. 6

Joseph F. Burchard, plaintiff in error. vs. Samuel J. Boyce, defendant in error.

No. 2.

Supreme Court of the State of Georgia

JANUARY TERM, 1857.

In Equity, in Richmond Superior Court. Decision by Judge Holt, at Chambers, September, 1856.

This bill was filed by Samuel J. Boyce, against Joseph F. Burchard, and alleged that on the 1st of January, 1855, the parties, with one Edward B. Ward, entered into a partnership in the retail dry goods business in the city of Augusta, under the name of Ward, Burchard & Co. That prior to this time, said Ward and Burchard had been engaged in the same business, and being possessed of little or no capital, and knowing that complainant had funds seeking investment, and with a view to bolster up their house, then on the verge of insolvency, they applied to him to embark with them in business. Articles of agreement were entered into, setting forth the terms of the partnership and the duties of each partner: Complainant complied with all the obligations imposed on him by said articles, advanced the sum of $20,000, as stipulated, and was a dormant partner; the active duties devolving upon Ward and Burchard. The bill charges various acts of mismanagement of the business; misapplication of the funds, and want of capacity and integrity on the part of said Burchard. That about the 20th of February, 1856, Ward died, and by the artful, fraudulent and false representation of Burchard, complainant was persuaded and induced to continue the business with him, and a new partnership for that purpose was formed, under the name of J. F. Burchard & Co. That all the terms of said new partnership were promptly complied with by complainant, who again advanced the sum of $10,000 — that he was a dormant partner, not residing in the city of Augusta, and taking no active part in the business, but the same was under the exclusive management and control of defendant. That in addition to the capital last advanced, he loaned various large sums to the firm soon after the new partnership, with the view of enabling the house to pay debts which Burchard represented as pressing.

There are various specific charges and allegations in the bill, showing want of skill, capacity and integrity on the part of defendant, and that complainant apprehended that the funds and assets of the firm would be misapplied and wasted by him.

The bill prayed that defendant be enjoined from contracting or collecting debts, from selling the goods or disposing of the assets, and from doing any other matter or thing connected with the business; it prayed also for a dissolution, and an account of the two firms of Ward, Burchard & Co., and J. F. Burchard & Co., and for the appointment of a receiver.

The bill was filed in the office of the Clerk of the Superior Court of Richmond county, on the 29th August, 1856; and on the 30th August, a copy was served on defendant, together with a notice, that on the 2d day of September, application would be made to Judge Holt, for the appointment of a receiver and for an injunction.

On the day mentioned in said notice, the parties by their counsel, appearing before Judge Holt, at Appling in the county of Columbia, counsel for defendant moved for a postponement to afford him an opportunity and further time to resist the motion for receiver and injunction, which motion for continuance was overruled, whereupon counsel for defendant excepted. The Judge then proceeded to hear the application for the appointment of a receiver and injunction, and after argument had, ordered the injunction to issue, but postponed the appointment of a receiver to allow defendant an opportunity to show why it should not be made. Whereupon counsel for defendant excepted and assigns for error:

1st. That said order was granted out of the county of defendant's residence.

2d. Because the bill is demurrable in that it is multifarious, and inasmuch as it is an imperfect bill—one which, as it stands, would be dismissed at the proper time for entertaining a demurrer, therefore the Court should make no order thereon. 3d. Because the bill does not present a case which authorizes such a proceeding, in that it does not show that defendant has done anything to exclude the complainant from a joint and equal participation in the management of said copartnership, and therefore such an order should not be granted.

4th. Because the bill does not make a case in which a Court of Equity can properly grant such an order at this time, and under the circumstances in which this motion is made, or under any other set of circumstances.

Gould & Starnes, for plaintiff in error.

Millers & Jackson, for defendant in error.

By the Court.—McDonald, J., delivering the opinion.

This case comes before this Court on exceptions to the decision of the Circuit Judge, refusing to grant a continuance of the motion for an injunction and the appointment of a receiver; and to his order directing an injunction to issue.

The bill was filed on the 29th day of August, 1856. On the 30th day of the same month, a notice was served on the defendant, that a motion would be made in said cause, before the Judge of the middle Circuit, for the appointment of a receiver and for an injunction. One of the counsel employed by the defendant to respond to the motion, appeared before the presiding Judge at the appointed time, and moved a postponement of its consideration for a reasonable time and to a convenient day:

1st. Because the defendant can not be called out of his county to answer and to meet a motion for this interlocutory order.

2d. Because neither the defendant nor his council have had time and opportunity for preparing and availing themselves of their rights in this behalf.

3d. Because the case, as it appears by the bill itself, is not a case of such emergency as to demand action on the part ofthe Court so hasty and so injurious to the character of the defendant.

On this application, the Court postponed the motion so far as the appointment of receiver was concerned, but granted the injunction. The refusal of this motion to continue, is made the first ground of error.

As we remarked in the case of Semmes vs. Mayor and Council of Columbus, 19th Geo. R. 484, "the Chancellor may order an injunction instantly, on the ex parte showing of the complainant: and the exigency of the case frequently requires that he should do it." There is nothing in the Constitution or laws that requires the application to be made in the county of the defendant's residence. It may be made at Chambers, at any place which suits the Chancellor's convenience. But the notice served in this case does not call the party out of his county. The defendant was simply notified of the time, and not the place, that the motion would be submitted to the Chancellor. The injunction was ordered at chambers. The Constitution prescribes the place at which civil causes shall be tried, and although equity cases are not embraced by the provisions of the Constitution, Courts of Equity have, in this respect, conformed to the requirements, but they never have held, and very properly too, that all motions growing out of an equity cause, or connected with it, must be heard in the county of the defendant's...