Morgan v. Hardee

• Decision Date: 30 September 1883
• Parties: Morgan, trustee. vs. Hardee, administrator.
• Court: Georgia Supreme Court

71 Ga. 736

Morgan, trustee. vs. Hardee, administrator.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1883.

New Trial. Receivers. Before Judge Adams. Chatham Superior Court. March Term, 1883.

On a bill filed by Moses Ferst et al., creditors of H. Mayer & Company, George Von Seybold was appointed receiver. Subsequently, trustees in bankruptcy of H. Mayer & Company, that firm having been adjudged bankrupts, filed a petition to have the assets in the hands of the receiver turned over to them. This case was carried to the Supreme Court, and resulted in a judgment that the assets should be paid over to the trustees. This judgment was as follows:

" Let the fund in the hands of the receiver be turned over to the petitioners, except so much thereof as may be legally necessary to defray the costs and expenses of collecting the fund and of securing it, until the order of surrender shall be granted, in pursuance of the directions now given."

This judgment was made the judgment of the superior court, February 10, 1877. On the 31st of March, 1877, the receiver filed a petition for compensation, praying that he might receive five per cent upon receipts and disbursement of the total fund, as finally acted upon by said court, and his expenditures to the amount of $1,146.63, counsel fees being paid out of the fund. Which petition was subsequently amended, so as to be a petition for $3,000.

The trustees in bankruptcy objected to the allowance of the fees prayed, on various grounds, the substance of which was that the court had no jurisdiction to allow the com-pensation, and because the receiver was not entitled to any compensation.

Different branches of this case have several times been to this court, and will be found reported in 55 Ga., 546; 57 Ib., 561; 60 Ib., 20.

The court overruled the grounds relating to the jurisdiction, as covered by the ruling in 60 Ga., 20; and the other objections were submitted to a jury. There were two principal points of contest: First, whether the amount claimed as disbursements and expenses, and for compensation of receiver, were correct; and second, whether the receiver had forfeited any claim to compensation by reason of mismanagement and violation of duty.

A considerable amount of evidence was introduced, mainly consisting of reports and statements of the receiver as to the assets in his hands, and the disposition of the same, and the expenses incurred. It is unnecessary to set this out in detail.

One ground of complaint against the receiver was that he had placed $19,504.35 of the funds collected by him in the private banking house of E. 0. Anderson, Jr., & Company at interest; that, by reason of his laches, Anderson & Company had failed, and had been unable to pay the amount so deposited, and that suit had been rendered necessary to recover it; that the receiver had received interest on the amount, which he had not at first stated in his return, but had subsequently added, and that he had kept this interest with his own private funds. The receiver, on the other hand, denied all impropriety in his conduct, and insisted that his services were worth the amount claimed; that the amount claimed for expenses was correct, and that he had not been guilty of laches; that he had stated the deposit in different petitions and reports filed by him, and that the cause of the delay in the collection was the death of a member of the firm of bankers, and the delay in settling his affairs.

The jury rendered a verdict in favor of the receiver for $3,000 00 and his disbursements, and a decree was entered thereon. On the same day an order was passed reciting that the receiver had in hand, over and above the amount advanced to him as compensation and disbursements, $1,748 00, and ordering that he bring that amount into court on the first Monday in March thereafter, for investment. The date of the order was January 25, 1879. A few days after the verdict, the receiver died. Subsequently, his legal representative was made a party, and a motion for new trial was made by the trustees, on the following among other grounds:

(1) to (5). Because the court overruled the objections of the trustees in bankruptcy to the allowance of the com. pensation prayed by the receiver, based on jurisdictional grounds.

(6.) Because the court admitted testimony as to the services rendered since the order to the receiver to turn over all the funds to the trustees in bankruptcy was granted, viz: February 10, 1877.

(7.) Because the court charged as follows. "I charge you that if Mr. Von Seybold made a deposit of this fund in the private banking house of Anderson & Company, such deposit was not illegal, if he made it in good faith, and without intention to defraud anybody, and in accordance with his authority as...