Drakeford v. Adams

• Decision Date: 27 July 1896
• Parties: DRAKEFORD. v. ADAMS.
• Court: Georgia Supreme Court

25 S.E. 833

98 Ga. 722

DRAKEFORD.

v.ADAMS.

Supreme Court of Georgia.

July 27, 1896.

Receivers — Recovery of Assets — Weight of Evidence—Notice of Order.

1. It is not essential to the maintenance of a petition by a receiver against one alleged to have in his possession money which the court has ordered shall be delivered to the receiver for the latter to prove beyond a reasonable doubt the fact that the respondent had such money in his hands, custody, or control after the passage of the order upon which such petition was based. While this fact must be clearly and satisfactorily established, it may be proved by a preponderance of the evidence; the case being m its nature purely remedial, and therefore a civil, and not a criminal, proceeding.

2. If the person alleged to have such money in his possession knew of the passage of the order in question, and its contents, it is immaterial whence his information on the subject was derived. As to the knowledge he actually had, he is chargeable to the same extent as he would have been had he been duly served with a copy of the order in question.

(Syllabus by the Court.)

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

In the matter of the Elder, Dempster, Gaston & Co. Liberian Company against Frank Drakeford, P. H. Adams, the receiver, obtained a rule against said defendant; from the order in which case, defendant brings error. Affirmed.

Wm. W. Davies and H. M. Reid, for plaintiff in error.

Mayson & Hill, for defendant in error.

SIMMONS, C. J. The receiver in the case of the Elder, Dempster, Gaston & Co. Liberian Company v. Frank Drakeford obtained a rule against Drakeford to show cause why 'he should not be adjudged in contempt for his refusal and failure to turn over to the receiver a certain fund of money belonging to the plaintiff. The case was tried before a jury, under the act of December 22, 1892 (Acts 1892, p. 65). The court submitted certain issues to the jury, which, with their answers thereto, were as follows: "(1) Did defendant, Drakeford, have possession, custody, or control of the fund alleged by the receiver to be withheld after the time of granting the order of court appointing a temporary receiver, which order was dated March 26, 1895, and after he had knowledge or notice that such an order had been granted? Answer. Yes. (2) Did he, or not, have such power, custody, or control when the receiver demanded it from him? Answer. Yes. (3) Is said Drakeford withholding, or taking part in withholding, funds ordered to be turned over to the receiver, and in his power, custody, or control? Answer. Yes. (4) If yes, how much? Answer. $909.55." The defendant made a motion for a new trial, which was overruled, and he excepted.

1. The grounds of the motion for a new trial which were mainly relied upon in the argument before us were that the court erred in refusing to charge the jury as follows: "If there is ground for any reasonable doubt of Drakeford's ability at the time the order of court was passed and served upon him to obey said order requiring him to turn over certain funds to P. H. Adams, receiver, you should find for the defendant, "—and that the court erred in not charging the jury that "they must be satisfied beyond a reasonable doubt of the truth of the allegations in the receiver's petition for a contempt rule against the de-fondant before they could, under the law, find the issue submitted to them, or any of said issues, affirmatively against the defendant." In cases of this character the ability of the defendant to comply with the order should beclearly and satisfactorily established before the jury should find against him, but it is not essential that they should be satisfied beyond a reasonable doubt. It is not required, in any civil case, that the proof shall be so conclusive as to exclude reasonable doubt. Our Code (section 3749) declares that "in all civil cases the preponderance of testimony is considered sufficient to produce mental conviction." See the opinion in Atlanta Journal v. May son, 92 Ga. 641, 18 S. E. 1010, where former decisions of this court touching reasonable doubt in civil cases are referred to and discussed. It was argued that this proceeding was, in its essence, a criminal proceeding, and that the rule applied in criminal cases was therefore applicable. We do not concur with counsel in this view. In all contempts, it is true, there is an element of criminality, involving as they do the willful disobedience of orders or decrees made in the administration of justice, but a contempt proceeding is not always a criminal proceeding. A distinction is made between cases...