Howard v. The Lowell Mach. Co.

• Decision Date: 31 October 1885
• Citation: 75 Ga. 325
• Parties: Howard et al. vs. The Lowell Machine Company et al.
• Court: Georgia Supreme Court

75 Ga. 325

Howard et al. vs. The Lowell Machine Company et al.

Supreme Court of the State of Georgia

OCTOBER TERM, 1885.

Practice in Supreme Court. Practice in Superior Court. Injunction. Receiver. Before Judge Fain. Bartow County. At Chambers. August 3 and October 27, 1885.

Reported in the decision.

Milner, Akin & Harris, for plaintiffs in error

B. F. Abbott; Graham & Graham: King & Spalding; J. R. Gray, for defendants.

Hall, Justice.

A restraining order had been granted and a temporary receiver appointed, as prayed by complainants' bill. At the same time, the defendants were called upon to show cause, on a day and at a place named in the order, why the injunction should not issue and the receiver be continued. The defendants appeared at the time and place appointed and made their showing against the process and appointment, when the parties were fully heard, but the decision of the chancellor was not rendered until a subsequent time On the 3d day of August, 1885, theapplication was passed upon, and the interlocutory decree then made directed that the restraining order theretofore passed against the Lowell Machine Company, one of the defendants, be rescinded, and that they have leave to proceed with their mortgage fi. fa. against the property mortgaged. As against all the other defendants, the injunction, as prayed for in the bill, was continued until the final hearing thereof, and the receivership previously ordered in the cause was continued until the further order of the court, except that said receivership should not operate against the Lowell Machine Company. To so much of this decree as related to the Lowell Machine Company, the complainant excepted and had his bill of exceptions and writ of error allowed against that defendant only. To this extent the decree was superseded. These papers were duly served on the Lowell Machine Company, filed in the clerk\'s office and transmitted to this court. Subsequently thereto, the other defendants moved the judge to modify this decretal order as to them. Notice of this motion was served on the complainant, and, on the 23d day of August, 1885, for certain satisfactory reason recited, the judge dissolved the injunction and rescinded the appointment of the receiver, as to all the defendants, except Miles G. Dobbins, as to whom and the mortgage held by him the restraining order was continued until the final hearing of the cause. The receiver was ordered to turn over the property in his hand to the parties from whom he received it. To this decretal order the complainant took another bill of exceptions, and sued out another writ of error, and insists that there was error in that:

(1.) The court had no power or authority to pass the order.

(2.) There was no pleading to sustain it.

(3.) In refusing to hear evidence on the issues tendered by complainant.

(4.) That it could not have been passed without notice to the receiver, and that, none was given him.

(5.) In passing the order, without its being shown that cause had arisen since the decree of August the third, 1885.

(6.) In passing the order while the cause was pending in the Supreme Court,

(7) and (8.) In passing the same, under the law and facts, as disclosed in the bill of exceptions, and in not refusing to pass any order whatever.

1. The last of these bills of exceptions will first be considered, The first and sixth exceptions to the last decree call in question the power and authority of the judge to make it, while the cause was pending on writ of error in this court; and if these exceptions were well founded, there could be little doubt of the correctness of the position assumed. Had there been a case between these parties and the complainant respecting the same subject-mat ter pending in this court, and had the decision excepted to been superseded, then it would have been taken from his cognizance, and any order modifying the decree, during the pendency of the writ of error, would have been coram non judice and void. This is a well-settled principle. The Western and Atlantic Railroad vs. The State, 69 Ga., 525, 532, 533. While it is true that there is a case pending here between the complainant and a defendant to the bill, in which these parties are also respondents, yet they have no interest in the termination of the case made by that writ of error, and no such connection with the defendant therein as has any bearing whatever upon their respective claims; they have no controversy and make no issue with the Lowell Machine Company, and that company does not call in question any of the rights or claims set up by them. It is no party to this bill of exceptions, nor are they or any one of them parties to the first in which it is a defendant. They stand just as they would have stood had there been no bill of exceptions to reverse a decree made in its favor. We, therefore, conclude that there is nothing in these exceptions.

2, The next question made relates to the power to mod-ify or rescind an interlocutory decree, rendered upon cause shown why an...