G. Ober & Sons Co v. Macon Const. Co

• Decision Date: 22 March 1897
• Citation: 100 Ga. 635,28 S.E. 388
• Parties: G. OBER & SONS CO. et al. v. MACON CONST. CO. et al.
• Court: Georgia Supreme Court

28 S.E. 388

100 Ga. 635

G. OBER & SONS CO. et al.

v.MACON CONST. CO. et al.

Supreme Court of Georgia.

March 22, 1897.

Corporations— Insolvency—Receivers—Attorneys' Fees.

Where all the assets of an insolvent corporation have been placed in the hands of a receiver, and through him are in process of judicial ad ministration, and certain intervening creditors file an independent petition, praying the court to direct the sale of certain property which still remained in the hands of the receiver, undisposed of, upon the grant of an order so directing, and the subsequent sale of such property thereunder, such creditors moving in the particular proceeding are not entitled to be allowed their counsel fees out of the general fund, or out of the fund realized from the sale of such property. The property being already in the hands of the receiver under the original proceeding, the mere effort of the intervening creditors to speed the cause, in order to enable them to realize at an earlier date than probably they otherwise would have been able to do, does not authorize, out of either of the funds above mentioned, the allowance of the expense incurred by them in that proceeding.

(Syllabus by the Court.)

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

In the matter of the insolvency of the Macon Construction ' Company, the Georgia Southern & Florida Railroad Company, the Macon & Birmingham Railroad Company, and the Macon & Atlantic Railway Company. From a refusal of an allowance of attorneys' fees to G. Ober & Sons Company and others, they bring error. Affirmed.

Hall & Hammond, L. F. Garrard, and Hill, Harris & Birch, for plaintiffs in error.

Bacon, Miller & Branson, Hardeman, Davis & Turner, John L. Hardeman, and Guerry & Hall, for defendants in error.

ATKINSON, J. On March 10, 1891, a petition was filed by McTighe & Co. against the Macon Construction Company, the Georgia Southern & Florida Railroad Company, the Macon & Birmingham Railroad Company, and the Macon & Atlantic Railway Company; the two railroads first named having been built by the Macon Construction Company, and the latter being then In process of construction by that company. Under that petition the properties of these various corporations were placed in the hands of a receiver. During the construction of said railroads the Macon Construction Company acquired considerable realty lying along the line of the two completed railroads, and also had considerable personalty, all of which was taken possession of by the receiver, who was appointed on March 10, 1891. During the progress of the litigation, many creditors of the Macon Construction Company intervened, and obtained judgments against it, as well as against the other defendants, respectively. The properties of the Macon & Atlantic Railway Company and those of the Georgia Southern & Florida Railroad Company were sold under a decree of foreclosure of certain mortgages, and an interlocutory decree had been rendered for the sale of the property of the Macon & Birmingham Railroad Company under a decree based upon the foreclosure of a mortgage, which sale had been postponed from time to time from May, 1895, to December, 1895. The property and assets of the Macon Construction Company were notunder any general mortgage similar to the mortgages on those of the other defendant corporations; there being, however, a mortgage upon certain specified property of the Macon Construction Company in favor of the Exchange Bank of Macon, upon which claim that institution had likewise intervened. No final decree had been rendered in the main case, and no interlocutory decree had been taken for the sale of the property of the Macon Construction Company; nor had any application therefor been made by McTighe & Co., or any other creditor who had intervened. Among the intervening creditors were Ober & Sons Company, the National Bank of Baltimore, and the Lackawanna Iron & Coal Company. These intervening creditors on April 2, 1895, filed a petition for the purpose of bringing to sale the properties of the Macon...