Cohen v. McCandless

• Decision Date: 15 May 1947
• Docket Number: 15810.
• Citation: 42 S.E.2d 739,202 Ga. 231
• Parties: COHEN et al. v. McCANDLESS.
• Court: Georgia Supreme Court

42 S.E.2d 739

202 Ga. 231

COHEN et al. v. McCANDLESS.

No. 15810.

Supreme Court of Georgia

May 15, 1947

Syllabus by the Court.

1. A failure to give notice to the defendant in error, as required by Rule 7 of the new rules of appellate procedure is not reviewable by this court.

2. Where in an equity case assets are being administered, and an order has been entered and published in compliance with the act approved March 24, 1939, (Ga.L.1939, p 344, Code, § 37-410), one who does not seek to intervene until after the time fixed therefor is barred from intervening and from participation in the distribution of the funds in court, whether he seeks to do so by a new claim or attempts to amend a previous claim.

Robert L. Rhodes Jr. filed a suit in equity, returnable to the March term, 1941, of Chatham Superior Court, against Standard System Investment Corporation and D. T. Simpson. On August 18, 1941, the defendants' property was placed in the hands of a receiver. The case was referred to an auditor with directions that he report his findings to the court at the December term, 1946. On September 9, 1946, the trial court issued the following order (after stating the case): 'It appearing to the court, * * * in the above case, that from the assets recovered by the receiver, all of the creditors of said corporation have been paid or their claims settled and adjusted, and that there remains in the hands of the receiver approximately thirty-five hundred ($3500) dollars over and above all estimated costs and expenses, the court thereupon, upon its own motion, orders that all parties concerned claiming an interest in said assets shall intervene in this cause by filing their claims, verified, with any pass books, deposit slips, atatements or other evidence of their claims, on or before Monday, December 2, 1946, and all such parties claiming an interest in said assets are hereby notified of this order and cited to file their claims by intervention with Hon. W. B. Scott, clerk of court, in default of which they shall be forever barred from intervening or making claim in this case. Done in open court at Savannah, Georgia, this 9th day of September, 1946.' This order was duly published.

On February 3, 1947, the auditor presented his report, and it was ordered filed. On February 11, 1947, Sarah R. McCandless, the defendant in error, filed petition, in which she sought to file a claim based upon certain preferred stock that she allegedly held in the corporation. She offered the instrument as an amendment to her claim on common stock, which claim had been filed on February 3, 1943; and she alleged that her claim on the preferred stock had been omitted by inadvertence. The intervention, over the objections of the plaintiffs in error, was allowed and ordered filed. On February 17, 1947, Girard M. Cohen and E. Maude Cohen, the plaintiffs in error, who were creditors of the corporation, filed petition, objecting to the intervention of the defendant in error, and praying for an order rescinding the order allowing her intervention filed. The trial court denied the prayers of their petition. The exception is to the judgment allowing the intervention, and to the judgment on the petition to rescind the order allowing the intervention.

Marvin O'Neal, of Savannah, for plaintiffs in error.

R. W. McDuffee, of Savannah, for defendant in error.

WYATT Justice.

1. The motion to dismiss the bill of exceptions is based upon a failure to give the notice provided for in Rule 7 of the new rules of appellate procedure (Ga.L.1946, 726, 735). This rule requires notice to the defendant in error before the bill of exceptions shall be certified by the trial judge, unless there be a waiver by the defendant in error. Rule 12 (Ga.L.1946, 739) provides in part: 'The action or nonaction of the trial judge as to requiring notice under this Section and Part 7 of this report, which is to be added to the Code as a new Section, shall not be reviewable.' It follows that this court is without authority to consider the question raised in the motion to dismiss.

2. The Code (Ann.Supp.), § 37-410 (Ga.L.1939, p. 344) provides as follows: 'In all equity cases now pending, or hereafter pending, in the superior courts of this State, wherein assets of either or both parties to the cause are being administered, marshaled or otherwise disposed of by the court, the court, upon motion of either party to the case or, on its own motion at least 60 days before the trial term, shall pass an order to be entitled in the cause and addressed to all parties concerned, requiring all parties claiming an interest in said assets to intervene in the cause not later than a certain date, which is to be fixed by the court, of not less than 60 days from the date of the order and not more than 90 days from the date...