The Old Hickory Distilling Co. v. Bleyer

• Decision Date: 30 September 1884
• Citation: 74 Ga. 201
• Parties: The Old Hickory Distilling Company et al. vs. Bleyer et al.
• Court: Georgia Supreme Court

74 Ga. 201

The Old Hickory Distilling Company et al. vs. Bleyer et al.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1884.

Equity. Practice in Superior Court. Injunction and Receiver. Demurrer. Judgments. Ne Exeat. Assignments. Before Judge Roney. Richmond Superior Court. October Adjourned Term, 1883.

To the report contained in the decision, it is necessary to add only the following: The Old Hickory Distilling Company et al. filed their bill in Richmond superior court on December 13, 1882, alleging that they were creditors of Max Brown, who had been doing business under the name of M. Brown & Company, and were so admitted to be in the deed of assignment of said Brown; that their debtor, who had been carrying on a liquor and cigar business, had within the past twelve months bought over $20,000.00 worth of stock; that he had made no sales on credit and lost nothing from bad debts; that on December 4, 1882, Brown executed a pretended deed of assignment to Samuel T. Bleyer of his stock and accounts, alleging the same to be all the property owned, possessed or held by him, for the benefit of his creditors, including complainants, preferring therein the Bleyer Distilling Company for $5,500.00, L. Blum & Company for $2,805.00 and Pfeifer & Company for $500.00, all non-residents and of unknown financial ability; that Brown demanded and received of Bleyer, as a consideration for and condition precedent to the execution of the assignment and preference to the distilling company, payment of the sum of $1,000.00, and that this sum was in the possession of Brown at the time of the execution of the pretended assignment; that the sum of $500.00 was paid by Blum & Company for like purpose at the same time, and this also was in the possession of Brown at the time of the execution aforesaid;that neither these sums nor any part of them were included in the schedule and inventory annexed to the assignment; that Brown had other sums of money, a large, quantity of cigars and about twenty barrels of liquor in his possession and ownership at the date of the assignment and not embraced therein; that Bleyer has taken possession of the assigned property, sold large portions of it, and will pay the proceeds to the alleged preferred creditors unless restrained from so doing; that the assignment is fraudulent and void, as also are the preferences; that Bleyer therefore holds the property as a trust fund for the equal payment of all the creditors of Brown without preference; that unless restrained, Bleyer, who is a non-resident, as are all the preferred creditors, will sell the property and pay over the proceeds to them, leaving complainants remediless. Wherefore they prayed that Bleyer be enjoined from making further sales of the property and from paying out any proceeds therefrom to the preferred creditors under the authority of the assignment, or in any way disposing of the same in execution thereof; that a receiver be appointed to take charge of this and the other property held by Brown; for writ of ne exeat, preventing Bleyer from removing himself or any of the property or its proceeds beyond the jurisdiction of the state, and for general relief.

The bill was sworn to by one of counsel for complainants, who stated that the facts therein recited, so far as they related to his own acts and deeds, were true, and so far as they related to the acts of others, he believed them to be true. The order of December 13, 1882, was passed by Judge Snead; the order dismissing the bill and discharging the ne exeat by his successor, Judge Roney.

Foster & Lamar, for plaintiffs in error.

Adolph Brandt; Frank H. Miller, for defendants.

Hall, Justice

On the 13th day of December, 1882, his honor, Judge Snead, of the Augusta circuit, ordered the defendants to show cause before him, at chambers, on the 29th day of that month, " why the prayer of the complainants, and especially so much thereof as prays the appointment of a receiver and the granting of the writs of ne exeat and injunction should not issue and be granted." The defendants did not await the arrival of the day appointed for hearing the cause, but, on the 15th day of December, notified the complainants that, on the 26th day of the month, they would move the presiding judge to dissolve the temporary injunction and the restraining orders passed by him in the cause. On (he latter day, they appeared and demurred, and by their demurrer showed for cause why these orders should be vacated and set aside; that complainants had not by their bill " made or stated such a case as does or ought to entitle them to the relief thereby sought and prayed for against defendants or either of them." Upon hearing this irregular and altogether unusual application, the judge passed an order "that the injunction be dissolved pro tanto, except as to the writ of ne exeat; that is to say, the defendant, Bleyer, will give bond in the sum of one thousand dollars, payable to complainants, to make good any judgment obtained by complainants, upon doing which the writ of ne exeat is refused." Under this unprecedented order, the defendant, on the 29th day of December, gave the bond required by it, with one B. Dub as his security; thereafter, on the 13th day of January, 1883, the defendant, Bleyer, took a bill of exceptions to this decision, and brought it by writ of error to this court, and when reached in its order on the call of the docket, he failing to appear and prosecute, it was for that reason dismissed, and the judgment excepted to was thereby affirmed. At the return term of the bill, the defendant, Bleyer, appeared in the superior court anddemurred to the same, upon the following additional and special grounds

(1.) There was a misjoinder of complainants.

(2.) For want of proper parties, the preferred creditors under the assignment from Brown to Bleyer not being made defendants.

(3.) That complainants had an adequate remedy at law.

(4) For multifariousness as to the relief prayed.

(5.) That no copy of the assignment was exhibited and no reason given for failing so to do.

(6.) Because the character of the indebtedness of the assignor to complainants, which was alleged not to be due, was not set forth.

At a subsequent day in the same term, a motion in writing was made by Bleyer " to dismiss the bill, or in default thereof to vacate the writ of ne exeat, and to cancel the bond given thereunder, and to discharge the surety to the same, "

(1.) Because both complainants and defendant, Bleyer, were at the time of the filing of the bill, and have since been, non-residents of the state, and in view thereof, no writ of ne exeat could issue at their instance and against said defendant, under the laws of this state.

(2.) Because the bill is not so verified as to authorize the issuing of this writ, the affidavit being only upon information and belief, the law requiring the statements and charges in the bill to be sworn to positively.

The demurrer and motion were heard together, and after consideration and argument, the presiding judge sustained both, and...