Murray v. Miller

• Decision Date: 14 November 1923
• Docket Number: 3798.
• Citation: 121 S.E. 113,157 Ga. 11
• Parties: MURRAY v. MILLER ET AL.
• Court: Georgia Supreme Court

121 S.E. 113

157 Ga. 11

MURRAY v. MILLER ET AL.

No. 3798.

Supreme Court of Georgia

November 14, 1923

Syllabus by the Court.

This case is controlled by the ruling made in Strickland v Darsey, 156 Ga. 717, 120 S.E. 7.

Error from Superior Court, Lanier County; E. K. Wilcox, Judge pro hac.

Petition by J. J. Murray, as trustee in bankruptcy, against T. E Miller, receiver, and others. Judgment against the trustee and he brings error. Affirmed.

Patterson & Copeland and J. J. Murray, all of Valdosta, for plaintiff in error.

Ben Smith and E. D. Rivers, both of Milltown, Franklin & Langdale, Dan R. Bruce, and Whitaker & Dukes, all of Valdosta, and Jno. P. & Dewey Knight, of Nashville, for defendants in error.

HILL J.

1. We have carefully examined the motion for rehearing, and also the briefs filed by both parties to the motion, together with the authorities cited; and we are still of the opinion that the judgment of the court below should be affirmed.

In the motion for rehearing it is contended that--

"In the original case of W. P. Darsey et al. v. J. B and A. J. Strickland, the plaintiffs are not lien creditors, either by contract or judgment, and for this reason they are not entitled to enjoin their debtor from disposing of property, nor obtain injunction or other extraordinary relief in equity. Park's Code, § 5495."

It is further contended that the agreement on the part of the original defendants, J. B. and A. J. Strickland, that a receiver be appointed and injunction granted, while binding on them, would not be binding on the trustee of J. B. Strickland, bankrupt. In the companion case to the present, Strickland v. Darsey, 156 Ga. 717, 120 S.E. 7, this court decided that A. J. Strickland was properly enjoined from going into a bankruptcy court and proving his claim of lien, he being a defendant in the state court and having consented to the appointment of a receiver and having acquiesced in the receivership proceedings; and that the proceedings in the state court had been pending for more than four months prior to the adjudication of J. B. Strickland as a bankrupt. In the instant case J. J. Murray, as trustee in bankruptcy, brought his petition praying that the court grant a rule nisi directed to T. E. Miller, receiver appointed by the state court, and A. J. Strickland, custodian, requiring them to show cause before the court why the described property should not be turned over to Murray as trustee, and that upon the hearing the court grant an order authorizing and directing Miller as receiver and A. J. Strickland as custodian to turn over and deliver to Murray as such trustee all of the described property in their possession. After consideration of the evidence and argument of counsel, the court below denied the application and refused to grant the order as prayed for. In the petition of the trustee for the order, no attack was made on the validity of the order appointing the receiver and granting the temporary restraining order. In paragraph 6 of the petition of the trustee the following allegation appears:

"As will appear from said

petition, no affirmative relief is asked of and against J. B. Strickland, but the only affirmative relief is asked against the said A. J. Strickland."

In paragraph 16(b) of the same petition is also an allegation as to why the court should grant an order directing the receiver of the state court to deliver to the trustee in bankruptcy all of the assets in his hands as received, viz.:

"Because the superior court of Lanier county has no jurisdiction of said case, for the reason that A. J. Strickland, the party against whom the only substantial affirmative relief is prayed, is a resident of Lowndes county, Ga., and the said A. J. Strickland has no right or authority to consent to the superior court of Lanier county taking and maintaining jurisdiction of said proceeding so far as the rights of petitioner are concerned."

It thus appears that the trustee is insisting that the court of Lanier county had no jurisdiction of the case, because A. J. Strickland, one of the defendants, was a resident of Lowndes county. It does not appear from the petition that the court was without jurisdiction to appoint a receiver and to grant an injunction on the ground that the petition of the moving creditors failed to allege insolvency or other facts authorizing the appointment of a receiver and the granting of an injunction.

We are therefore of the opinion that, having failed in his petition to make such an attack in the lower court on the order appointing a receiver and granting an injunction, the trustee cannot be now heard for the first time to raise that question in this court. We are also of the opinion that the trustee will not be allowed to make a collateral attack on the order of the court appointing a receiver and granting an injunction, where it appears that the court had jurisdiction both of the person and of the res. It will be borne in mind, too, that in a case like the present the suit must be brought in the county of the residence of the grantor of a deed which is being attacked as fraudulent (Fourth National Bank of Columbus v. Mooty, 143 Ga. 137, 84 S.E. 546), and that was done in the present case. In the case just cited this court held that--

"A creditor may proceed against his debtor in the superior court of the latter's residence, for judgment on his demand, and in the same action may have cancellation of his debtor's fraudulent deed, if necessary to enforce his judgment, although his debtor's grantee resides in another county, provided the latter is a party to the action. But such creditor cannot maintain an action for his debt, and for ancillary relief of canceling his debtor's deed, in a county of the venue of the debtor's grantee, which is different from that of the debtor, though the debtor be made a party with his grantee."

And it seems to be well settled that an order appointing a receiver cannot be collaterally attacked. 4 Pom. Eq. Jur. (4th Ed.) 3788, § 1603; Com. Nat. Bank. v. Burch, 141 Ill. 519, 31 N.E. 420, 33 Am.St.Rep. 331; Ludick v. Neville (C.C.A.) 287 F. 479, 42 Cent. Dig. col. 281, § 95(a), (b), (c), (d). cols. 282, 287, 290; Holmes v. Knapp Elec. Wks., 59 Ill.App. 58; Storm v. Ermantrout, 89 Ind. 214; Edrington v. Pridham, 65 Tex. 612; Comer v. Bray, 83 Ala. 217, 3 So. 554; Bagley v. Scudder, 66 Mich. 97, 33 N.W. 47; Olmstead v. Distilling, etc., Co. (C. C.) 73 F. 44; Bangs v. Duckinfield, 18 N.Y. 592; Gunby v. Armstrong, 133 F. 417, 66 C.C.A. 627; McKay v. Van Kleeck, 133 Mich. 27, 94 N.W. 367; Block v. Estes, 92 Mo. 318, 4 S.W. 731; Andrews v. Steele City Bank, 57 Neb. 173, 77 N.W. 342; 17 First Decennial Digest, pp. 1002-1003, § 59(b), (r), (t), (x); 19 Second Decennial Digest, p. 956, § 59 (Miss. 1908); Benjamin v. Staples, 93 Miss. 507, 47 So. 425; 2A Am. Dig. Key-No. Series, 1740, § 55.

And the Supreme Court of this state has held, in cases where the trustee applies for possession of the property in the hands of the receiver appointed by the state court, that the trustee cannot question or contest the jurisdiction of the state court in appointing a receiver, but that his right to the possession of the property depends solely on the extrinsic fact of bankruptcy. Young v. Hamilton, 135 Ga. 350, 69 S.E. 593, 31 L.R.A. (N. S.) 1057, Ann.Cas. 1912A, 144.

In 1 Pom. Eq. Jur. (4th Ed.) 155, § 129, it is said:

"The proceedings and judgment of a court of chancery, or of a court clothed with equity powers, are not necessarily null and void because the action is not one which comes within the scope of the 'equity jurisdiction' in the common acceptation of that phrase, or, in other words, because the claim is one for which there is a full, adequate, and complete remedy at law," etc.

And see Id. 157, § 130.

In Shields v. Coleman, 157 U.S. 168, 15 S.Ct. 570, 39 L.Ed. 660, it is held:

"Even if a bill which seeks, as one of its objects, the appointment of a receiver, is imperfect, so as to require amendments to make it a complete bill in all respects, it does not follow that the court is without jurisdiction to make the appointment. On the contrary, when the court adjudges the bill sufficient, and makes the appointment, that appointment cannot be questioned by another court, or the possession of the receiver disturbed."

A plea to the jurisdiction is a personal plea, and the defendants, J. B. and A. J. Strickland, are the only ones who could raise this question; and when the hearing of the petition in the state court was had on June 17, 1922, the defendants, A. J. and J. B. Strickland, consented to the appointment of a receiver and the granting of the temporary restraining order. We are therefore of the opinion that the trustee in bankruptcy cannot successfully make a collateral attack on the legality of the order appointing the receiver and granting an injunction; and this being so, the seizure of the property by the receiver of the state court is legal, and he cannot be deprived of such possession by the trustee in bankruptcy.

2. The Bankruptcy Act of 1898 being a federal statute (U. S. Comp. St. §§ 9585-9656), the construction placed on it by the federal courts will be binding. 5A Key-No. Series, p. 543, § 97(5); 5 First Decennial Digest, p. 2108,§ 97(5), (b), (m). "It is a well-settled rule of jurisprudence which has been followed by this court since its earliest history, as pointed out by Chief Justice Jackson in Clark v. Turner, 73 Ga. 1, to construe all statutes of a sister state, as well as the statutes of the United States, in accordance with the meaning and construction placed upon them by the courts of these foreign jurisdictions." Bugg v. Consolidated Grocery Co., 155 Ga. 552, 553, 118 S.E. 56, 58.

"The decision of the United States Supreme

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