Smith v. Zachry

• Decision Date: 15 May 1907
• Parties: SMITH v. ZACHRY.
• Court: Georgia Supreme Court

57 S.E. 513

128 Ga. 290

SMITH

v.ZACHRY.

Supreme Court of Georgia.

May 15, 1907.

1. Writ of Error—Record—Affidavits Used on Application for Receiver.

Where exception is taken to the grant of an injunction and the appointment of a receiver ad interim, affidavits used on the hearing of the application must be brought to this court in one of three ways—by being briefed and included in the bill of exceptions, as exhibits to the bill of exceptions duly identified by the presiding judge, or by being included in a brief of evidence approved and made a part of the record. To simply file affidavits with the clerk, although identified by the judge, does not make them a part of the record, or authorize them to be sent to this court as such. Roberts v. Heinsohn, 51 S. E. 589, 123 Ga. 685; Eubank v. Eastman, 48 S. E. 426, 120 Ga. 1048; Hancock v. McNatt, 42 S. E. 525, 116 Ga. 297; Askew v. Hogansville Cotton Oil Co., 55 S. E. 921, 126 Ga. 807.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 2374.]

2. Same—Evidence.

On exception to the granting of an injunction and the appointment of a receiver, questions involving a consideration of the evidence will not be considered, where the evidence is not properly brought to this court. Sayer v. Brown, 46 S. E. 649, 119 Ga. 539.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, §§ 2867-2869.]

3. Judgment—Res Judicata.

Every material question of law involved in this case is controlled by former adjudications of this court.

4. Receiver—Appointment.

If a defendant in fi. fa. had delayed the lawful sale of land subject to the fi. fa. for some 7 years, through meritless claims interposed by himself and his wife in forma pauperis, sometimes withdrawn and sometimes decided against her. and through the interposition, by himself of successive. affidavits of illegality, also without merit, while he remained in possession and received the rents, issues, and profits, and the amount of the executions had increased by accruing interest, and the value of the land had diminished by reason of his method of cultivating it, so that there was danger of loss to the creditor of a part of the execution debt due him. upon the interposition of another affidavit of illegality and exception from an adverse ruling thereon, upon affidavit in forma pauperis, the presiding judge, upon application, properly appointed a receiver ad interim.

[Ed. Note.—For cases in point, see Cent Dig. vol. 42, Receivers, §§ 21-27.]

(Syllabus by the Court.)

Error from Superior Court, Troup County; A. D. Freeman, Judge.

Equitable petition by J. T. Zachry against J. H. Smith. A receiver ad interim, was appointed, and defendant brings error. Affirmed.

J. T. Zachry filed his equitable petition against J. H. Smith, alleging as follows: On October 17, 1898, plaintiff obtained two judgments against defendant, based on promissory notes containing waivers of all homestead and exemption rights of himself and family under the laws of the state or of the United States. At the time of the filing of the present petition, the aggregate amount of principal, interest, and costs due on the judgments was approximately $800. Executions issued and were levied on October 24, 1898, upon certain described land. The defendant filed a voluntary petition in bankruptcy, and was adjudged a bankrupt on November 25, 1899, and was discharged on October 13, 1900. The plaintiff did not prove his claim in bankruptcy. The land levied on was set apart to the defendant as a homestead. His wife then interposed a claim against the levy. The case was continued until May 6, 1901, when she withdrew the claim. The defendant then filed an affidavit of illegality, which was overruled on September 12, 1901, and the case was carried to the Supreme Court, where the judgment was affirmed. 115 Ga. 722, 42 S. E. 102. The land was advertised for sale, and the defendant interposed a claim, on January 1, 1903, but withdrew it on May 3d following. The plaintiff filed an application for a receiver, which was refused. The land was again advertised for sale, and the defendant again interposed a claim. The property was found subject, and the judgment was affirmed by the Supreme Court. 121 Ga. 467, 49 S. E. 286. Again the land was advertised. The defendant's wife again filed a claim, which was dismissed on January 30, 1904. She filed still another claim, under which the property was again found subject. Once more the property was advertised, and the defendant again filed an affidavit of illegality, which was overruled on March 19, 1906, and to this ruling a bill of exceptions has been filed by the defendant in forma pauperis, for the sole purpose, as petitioner believes and avers, of obtaining more delay. Each of the claims has been filed in forma pauperis. Defendant and his wife are now residents of Alabama, and havebeen so for more than a year. The defendant is utterly insolvent, and the plaintiff's only means of collecting his judgment is out of his land, which is not worth exceeding $500 or $600, and the rental value of which is $80 per annum. The defendant,...