Dawson v. Equitable Mortg. Co.

• Citation: 34 S.E. 668,109 Ga. 389
• Parties: DAWSON v. EQUITABLE MORTG. CO.
• Decision Date: 02 December 1899
• Court: Supreme Court of Georgia

34 S.E. 668

109 Ga. 389

DAWSON v. EQUITABLE MORTG. CO.

Supreme Court of Georgia

December 2, 1899

Syllabus by the Court.

1. A ground of demurrer to a petition, stating in general terms that "there are no proper parties," is too vague and general. Such ground is itself defective, in that it fails to point out who would be proper parties to the proceeding.

2. Where a levy of a fi. fa. upon land has been met by a fraudulent and frivolous claim of an insolvent person, made in forma pauperis, an equitable petition in aid of the levy will lie in the superior court of the county in which the claim case is pending, notwithstanding the fact the claimant may not reside in that county; the object of the petition being to prevent such interference by the claimant with the progress of plaintiff's execution, and to have a receiver appointed to take charge of the land, with the view of applying the rents and profits thereof to plaintiff's execution; the petition making a case that the claimant had not only filed the one claim, but, for the purpose of delay had previously forced a continuance of the case, and had before the filing of the claim, been instrumental in defeating the collection of the fi. fa. by dilatory tactics the petition also making a case showing that, but for such equitable interference, the rents and profits would be appropriated by the claimant, who was in possession, and the plaintiff's power to collect its money to that extent would be defeated.

3. The several objections to the admission of evidence presented no legal reason for excluding the same, save, perhaps, in one or two instances, where the evidence admitted was not of such importance or materiality as to affect the result. In view of the testimony submitted pro and con on the interlocutory hearing, there was no abuse of discretion in granting the injunction and appointing a receiver.

Error from superior court, Macon county; Z. A. Littlejohn, Judge.

Action by the Equitable Mortgage Company against E. R. C. Dawson. An execution was levied on certain lands to which J. M. Dawson interposed claim. From a judgment restraining claimant from interfering with the lands and appointing a receiver of the rents and profits thereof, claimant brings error. Affirmed.

R. D. Smith and Jas. M. Du Pree, for plaintiff in error.

Payne & Lye, E. A. Hawkins, and J. W. Haygood, for defendant in error.

LEWIS J.

At the May term, 1894, of Upson superior court, a verdict was rendered in favor of the Equitable Mortgage Company against E. R. C. Dawson for $2,867.50, besides attorney's fees and costs, and a special judgment was rendered on the verdict against certain lands. A fi. fa. was issued on the judgment and levied upon these lands, whereupon J. M. Dawson interposed a claim. This claim was returned to Macon superior court, in which county the lands were located. At the May term of that court, in aid of the levy made in the case, an equitable petition was filed in behalf of the plaintiff in fi. fa. against J. M. Dawson. The following facts, in brief, were set forth in this petition: When the lands were first levied on by the sheriff of Macon county, a claim was filed thereto by one Atwater, which was dismissed on May 13, 1895; and on June 24, 1895, another claim was filed by Atwater, which was dismissed on November 10, 1896. After this the lands were again advertised for sale, when an affidavit of illegality was filed by E. R. C. Dawson on June 5, 1897, which illegality was dismissed on November 9, 1897. After this the lands were again advertised for sale, when an affidavit of illegality was filed by J. M. Dawson (the claimant in this case), as agent for E. R. C. Dawson, and this affidavit was dismissed on November 15, 1898. The property was again advertised for sale on the first Tuesday in January, 1899, and a claim to the lands was filed by J. M. Dawson under an affidavit in forma pauperis, no bond and security being given by the claimant, who procured a continuance of the trial term. The petition charges, among other things, that J. M. Dawson has no valid legal or equitable title to the lands superior to plaintiff's judgment; that he has resorted to dilatory tactics for no other purpose than to retain possession of the property and enjoy the rents and profits thereof; that, previous to filing the claim, Dawson requested petitioner that he be allowed to pay the amount due on the judgment in certain installments, annually, until the debt was discharged in full, and no claim was then made by J. M. Dawson of any title to or interest in the property, but he recognized the validity and superiority of plaintiff's judgment, and his only desire was to gain time, but that Dawson wholly failed to comply with this contract. It was further alleged that, after the making of this contract J. M. Dawson interposed an affidavit of illegality as agent for E. R. C. Dawson, and that, after the dismissal of this illegality, he filed a claim to the property, with a pauper's affidavit thereto attached; that J. M. Dawson was then in possession of the land, receiving the rents and profits therefrom, and was insolvent; that neither he nor E. R. C. Dawson paid taxes since 1892, and tax fi. fas. for the various years since that date had been issued and transferred to various parties, who are holding the same against the property as outstanding liens; that no part of the plaintiff's debt has been paid, and, if the frivolous claims are not stopped, and the property brought to sale, the plaintiff will not realize its debt out of the same; and that the claim filed by J. M. Dawson, which was returnable to the May term, 1899, of Macon superior court, was interposed by said claimant for the purpose of further delaying and hindering petitioner in the collection of its debt. The petition prayed for the appointment of a receiver to take charge of the property, rent out the same, and hold the proceeds subject to the further order of the court; and that J. M. Dawson be enjoined from further interfering with or hindering the enforcement of plaintiff's fi. fa., or occupying, renting, or having anything to do with the...