Henley v. Colonial Stages South, Inc.

• Decision Date: 18 May 1937
• Docket Number: 11794.
• Citation: 191 S.E. 445,184 Ga. 445
• Parties: HENLEY v. COLONIAL STAGES SOUTH, Inc., et al.
• Court: Georgia Supreme Court

191 S.E. 445

184 Ga. 445

HENLEY v. COLONIAL STAGES SOUTH, Inc., et al.

No. 11794.

Supreme Court of Georgia

May 18, 1937

Error from Superior Court, Lowndes County; W. E. Thomas, Judge.

Suit by the Colonial Stages South, Inc., against J. A. Henley and another. After the suit was filed the plaintiff was dissolved as a corporation, and J. B. Copeland as receiver of its assets in the state of Georgia was made a party plaintiff in its stead. To review an adverse judgment, the named defendant brings error.

Case transferred to the Court of Appeals.

Syllabus by the Court.

It appearing that the equitable features which might otherwise have placed the jurisdiction of this case in the Supreme Court were eliminated on or before the trial, and that the only questions involved under the writ of error relate to the legal relief as obtained by the plaintiff and opposed by the defendant, the Supreme Court is without jurisdiction; and the case is transferred to the Court of Appeals.

Jordan Johnson and Wilcox, Connell & Wilcox, all of Valdosta, for plaintiff in error.

Franklin & Eberhardt and Copeland & Dukes, all of Valdosta, for defendants in error.

BELL Justice.

The Court of Appeals, and not the Supreme Court, has jurisdiction of this case. The jurisdictional question is whether the writ of error presents an 'equity case.' Code, § 2-3005 (Const. art. 6, § 2, par. 5). Colonial Stages South, Inc. filed a suit in the superior court of Lowndes county against J. A. Henley and R. E. Barfield, residents of that county. The main purpose of the suit was to recover a money judgment upon several notes and contracts on which the defendants were alleged to be indebted. The petition was filed, however, as a suit in equity, because of alleged insolvency of the defendants, with the exception of a franchise to operate a bus line in which they were interested and as to which a receiver was prayed. The petition also prayed that the defendant Barfield be required to answer in detail as to any claim or claims which he might have against his codefendant Henley, and 'that petitioner have such other relief as to the court may seem right and proper.' No action was ever taken on the application for a receiver, and no appearance was made by the defendant Barfield. Henley filed an answer denying any indebtedness to the plaintiff, and at later stages of the case asserted other alleged defenses, none of which was equitable in nature. After the suit was filed, Colonial Stages South, Inc., was dissolved as a corporation, and J. B. Copeland as receiver of its assets in the State of Georgia was made a party plaintiff in its stead. Pending the action, a garnishment was served upon a resident of a different county, and the garnishee filed an answer in the superior court of that county, as required by the summons, admitting that he was indebted to the defendant in a stated sum. Before verdict the defendant Henley was adjudicated a bankrupt, and filed a plea seeking to stay the action. At the close of the evidence the judge directed a verdict in favor of the plaintiff for a stated sum of money, providing, however, that the judgment should be collected and satisfied solely out of the fund in garnishment, and granting a perpetual stay of execution otherwise. The court also directed that the plaintiff should have a special lien upon the fund, and all these conditions were stated in the verdict and judgment. The defendant filed a motion for a new trial containing the usual general grounds, to which other...