Smith v. Zachry
| Decision Date | 15 May 1907 |
| Parties | SMITH v. ZACHRY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
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.
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.
Every material question of law involved in this case is controlled by former adjudications of this court.
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 for some 7 years, through meritless claims interposed by himself and his wife in forma pauperis sometimes withdrawn and sometimes decided against her, and through the interposition by himself of successive affidavits of illegality, also without merit, while he remained in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.
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.
E. T. Moon, for plaintiff in error.
B. H. Hill and H. A. Hall, for defendant in error.
LUMPKIN, J. (after stating the above facts).
The evidence was not properly brought up, and cannot be considered. The only questions which can be reviewed are the questions of law raised upon the sufficiency of the case made by the petition. All the controlling questions of law have been decided heretofore by this court. The lien upon this land of the judgments based on notes waiving homestead and exemption rights...
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