Loudon v. Coleman

• Court: Supreme Court of Georgia
• Citation: 62 Ga. 146
• Parties: Loudon, assignee. v. Coleman, receiver.
• Decision Date: 31 August 1878

62 Ga. 146

Loudon, assignee. v. Coleman, receiver.

Supreme Court of the State of Georgia

(August Term, 1878.)

[62 Ga. 147]

Judgments. Misnomer. Machinist's lien. Verdict. Bankrupt. Liens. New trial. Practice in the Superior Court. Argument. Fees. Before Judge Crawford. Muscogee Supe

[62 Ga. 148]

rior Court. May Term, 1878.

*In May, 1872, several attachments and an execution, based on the foreclosure of a machinist's lien, were levied upon the property of the Empire Cotton Seed Huller and Oil Company, a foreign corporation. The levy was upon personalty, of a perishable nature, all of which was sold, under order of the judge of the superior court, on June 14, 1872, producing the net sum of $5,125.00. Conflicting claims on this fund were presented, and it was, by order of court, June 22, 1872, deposited with John King, banker. King became an involuntary bankrupt. Blaudford & Garrard, attorneys, in behalf of Fontaine, a judgment creditor of the Huller and Oil Company, whose judgment has since been transferred to them and in behalf of Mary S. Smith, a creditor by distress warrant, petitioned. May, 1874, for the appointment of a receiver to collect from the estate of King the amount so deposited, and to bring it before the court. Coleman was appointed such receiver. Blanford & Garrard represented him in the bankrupt court. There was awarded to him a sum which, after deducting bis charges, leaves in his hands $1,869.00 for distribution.

In July, 1872, the Huller and Oil Company was adjudicated a bankrupt in the U. S. distriet court for the southern district of New York, and in the following September John Loudon was appointed assignee.

The following claims were presented as liens on said fund:

1. Blandford & Garrard, attorneys, for professional services rendered in having the receiver appointed, and for services rendered for the receiver in bringing the fund into court, $300.00.

2. The Columbus Iron Works Company, which alleges as fellows: It is a machinist, and as such did, from November 4, 1871, to April 4, 1872, furnish, and put up, and repair, for said Huller and Oil Company, certain machinery, to-wit: One steam engine, fixtures, shafting, etc.; did repair the oil presses, etc. For these services said company became indebted to it on May 4, 1872, $1,870.26. It recorded its lien

[62 Ga. 149]

upon the machinery and premises within three months *from the time the work was completed. Within twelve

months from the time said debt matured, an attachment was levied at its instance upon said machinery and fixtures; the property was sold under order of the judge, and is represented by the fund now in court for distribution.

3. Distress warrant in favor of Mary S Smith for rent, $550.00, which was levied upon a part of the property subsequently sold under order of the judge.

John Loudon, as assignee in bankruptcy, claimed the entire fund, and filed objections to every assertion of lien thereon except the thud above set forth. He was successful as against all except the above three. As to them, the following verdict was returned:

"We, the jury, find in favor of Blandford & Garrard $200.00,

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the amount claimed by them. We further find for the Columbus Iron Works, $1,119.01, and for Mary S. Smith, $550.00."

Whereupon the court adjudged that the receiver first pay all the costs, and then the parties mentioned in the verdict in the order named. This judgment was subsequently changed by requiring that the costs be paid by the parties in proportion to the amount recovered by each.

Loudon, assignee, moved in arrest of judgment upon they following grounds:

1. Because at the November term, 1877, the Columbus Iron Works Company, certain judgment creditors, Blandford & Garrard, and Mary S. Smith, presented their claims of lien or;¹ this fund, to all of which movant objected except the last Upon the trial of the issues thus formed, the whole fund was. found subject to the lien of the Iron Works Company. To this finding all of the claimants submitted except movant and Mary S. Smith. They moved for a new trial, which being refused, they appealed to the supreme court. That tribunal held that the only necessary parties to said motion, the others not contesting the verdict, were the movants, the Iron Works Company, and the receiver. A new trial was ordered. (59 Ga., 653.) Upon the new trial, *Blandford & Garrard again claimed for fees, when the verdict and judgment were rendered as above stated.

2. Because there is no such case shown by the records of this court as that of Biandford & Garrard, partners, etc., v. Charles Coleman, receiver, Columbus Iron Works, Mary S. Smith, John Loudon, et al. (This is the heading which precedes the judgment of the court.)

3. Because the finding of the jury in favor of the Iron Works, even if based on a machinist's lien for furnishing and repairing machinery to the amount of $1,119.01, does not authorize a judgment requiring the receiver to pay that amount out of the fund in his hands, until an execution shall first be ordered against the premises to which said machinery was attached.

4. Because the fund was not subject to the amount found by the jury unless the verdict had gone further and declared that the Iron Works Company had a lien on all the property which produced the fund, or else stated what portion of said fund was the proceeds of property upon which said company had a lien.

5. Because the mere finding of $1,119 01 in favor of the Iron Works Company, without more, did not authorize a judgment requiring the receiver to pay out of a fund in his hands; nor did it authorize the court to postpone one creditor to another.

6. Because as the verdict gives no preferences, neither can the judgment.

7. Because the record discloses that the Huller and Oil Company was adjudicated a bankrupt in July, 1872, the receiver was appointed in May, 1874, and the services of Blandford & Garrard were rendered without notice to the assignee, and two years after the adjudication.

8. Because the distress warrant in favor of Mary S. Smith was levied in part upon property upon which the Iron Works claimed no lien, and it is impossible to tell from the verdict what part of the property levied upon by the distress war

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rant was found to be subject to the lien of said *Iron Works, and yet the judgment gives it its whole debt out of the fund, although a portion thereof must be the proceeds of property on which Mary S. Smith had a specific lien, and on which it had no lien.

9. Because the fund arises from the sale of the whole property, and neither Mary S Smith nor the Iron Works claimed any lien on a great and valuable part of the property, to the proceeds of which movant is entitled.

10. Because the whole fund arises from the sale of personal property which...