Estes v. Callahan
| Decision Date | 13 September 1927 |
| Docket Number | 5783. |
| Citation | 139 S.E. 532,164 Ga. 744 |
| Parties | ESTES v. CALLAHAN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Although the intervener in the present case might, in an equitable petition in aid of the levy of his fi. fa., have asked for the appointment of a receiver in a new and different proceeding, it was beyond the power of the court and without its jurisdiction to appoint a receiver in an entirely different cause of which the court had lost jurisdiction by reason of the fact that another judge of the same court had previously certified a bill of exceptions which was then pending in the Court of Appeals.
Error from Superior Court, Fulton County; E. D. Thomas, Judge.
Proceeding in fi. fa. by the City Savings Bank against C. P. Callahan in which Mrs. T. L. Estes filed a claim, consolidated with an equitable petition by plaintiff in fi. fa. against defendant and claimant, in which C. P. Callahan intervened by a petition in the nature of an answer to the consolidated cause seeking appointment of a receiver. To review the judgment appointing a receiver, defendant Mrs. T. L. Estes brings error. Reversed.
W. A James and L. S. James, both of Atlanta, for plaintiff in error.
Alvin L. Richards, of Atlanta, for defendant in error.
As appears from the record, Callahan owned a house and lot in the city of Atlanta, on which he obtained a loan of $2,000 from the City Savings Bank. He sold this house to one Abercrombie, subject to this loan, and Abercrombie in turn sold it to Mrs. Estes, the plaintiff in error, subject to the loan in favor of the City Savings Bank as well as the purchase-money notes given by Abercrombie to Callahan amounting to $1,300. The City Savings Bank sued Callahan on the loan and obtained judgment. Callahan sued Abercrombie for the balance on his purchase-money notes and obtained judgment. The fi. fa. in favor of the City Savings Bank was levied upon the house then in the possession of Mrs. Estes, and she interposed a claim. Upon the trial of the claim case, the property was found subject to the fi. fa. in favor of the City Savings Bank, and by bill of exceptions the case was presented to the Supreme Court. Estes v. City Savings Bank, 164 Ga. 573, 139 S.E. 13. In the process of the litigation just referred to, an application by the City Savings Bank for the appointment of a receiver to take charge of and collect the rents from the house which had been purchased by the claimant was refused. The property was advertised to be sold on the first Tuesday in January, 1926, and the claim of Mrs. Estes was filed the day preceding that fixed for the sale. After the writ of error in the preceding case had been certified by the presiding judge, Hon. John D. Humphries, on July 3, 1923, and on August 13, 1926, as appears from the bill of exceptions in this case, as certified by Hon. E. D. Thomas, the same cause was taken up for trial upon an intervention filed by Callahan, in which he alleged that he was the owner of a judgment against Abercrombie, based upon an indebtedness, payment of which had been assumed by Mrs. Estes, and setting up that Mrs. Estes was in possession of the property without paying any rent; that the property was subject to the debt of the City Savings Bank, and would probably bring enough at the sale to pay the indebtedness due the bank; but asking that a receiver be appointed to take possession of the house and collect and hold the rents until the conclusion of the litigation, for his protection. The lower court passed an order that a receiver be appointed in case the defendant did not give bond for the eventual condemnation money, and exception is taken to this judgment.
We are of the opinion that the court erred in the appointment of a receiver. Regardless of the fact that the judge did not pass upon the demurrer interposed to the petition when the same was read, but proceeded, on the contrary, to require the introduction of evidence as to the facts stated in the petition for a receiver, the objections of plaintiff in error to the hearing, based upon the ground that the case was pending in the Supreme Court, should have been sustained. The case pending before the court (even after the order consolidating case No. 66800 and case No. 66843) was nothing but an ordinary claim case in which the parties were the City Savings Bank, as plaintiff in fi. fa., and Mrs. Texas L. Estes, as claimant, and the petition for receiver, which is entitled in the record as City Savings Bank v. Mrs. T. L. Estes. Callahan was not a material party in either case, for the reason that the sole issue in a claim case is whether the property levied upon is the property of the claimant or is subject to the fi. fa. of the plaintiff in fi. fa. as the property of the defendant in fi. fa. One of the points made in the demurrer of the plaintiff in error in this case, setting forth that the petition filed by the defendant in fi. fa. set forth no cause of action, is based upon this principle, and we think the ground of demurrer was well taken. The answer of the defendant in fi. fa., Callahan, admitted his liability to the judgment upon which the levy was proceeding. In our opinion, the entire petition was irrelevant to the issue in the claim case and afforded no reason for the appointment of a receiver.
But should we be mistaken as to this, the court should not have entertained or passed upon the intervention or have appointed a receiver on August 13, 1926, after the consolidated cases had been transmitted to this court for adjudication on the bill of exceptions certified by Hon. John D. Humphries on July 3. Courts of review have never been inclined to favor the practice of trying cases by piecemeal and in dissevered fragments, and for that reason it has been uniformly held that:
When "the bill of exceptions is certified by the trial judge, the case is no longer pending in his court and he is wholly without authority to pass any order or to do any act with reference to the same." Georgia, etc., R. Co. v. Lasseter, 122 Ga. 679, 684, 51 S.E. 15, 17. "As a general rule, when an appeal or writ of error is perfected the case becomes one for the cognizance of the appellate court, and for that court alone; the authority of the lower court is terminated, and it cannot proceed in the cause, at least as to the subject-matter of the appeal or writ, until the appeal or writ of error is heard and determined." 3 C.J. 1255, § 1369; Michigan Ins. Bank v. Eldred, 143 U.S. 293, 12 S.Ct. 450, 36 L.Ed. 162.
The trial of the application for a receiver was particularly inappropriate in the present case, because it was an attempt to ingraft rights of Callahan upon a proceeding which concerned only the City Savings Bank, and to use the levy of the fi. fa. in favor of the City Savings Bank, when it does not appear from the record, and certainly not in the petition of Callahan, that there has ever been any levy of the fi. fa. obtained by Callahan against Abercrombie.
Judgment reversed.
All Justices concur, except GILBERT and HINES, JJ., who dissent.
I dissent from the ruling of the majority that the court below erred in appointing a receiver for the premises in dispute, at the instance of Callahan, upon the ground that the court had lost jurisdiction of the case by reason of the fact that a bill of exceptions had been sued out and was pending in the Court of Appeals at the time the receiver was appointed. An execution in favor of the City Savings Bank against Callahan was levied upon certain realty as the property of the defendant in execution, and to this property Mrs. Estes filed a claim. Subsequently the City Savings Bank filed an equitable petition against Callahan and Mrs. Estes, in which it alleged that Callahan had borrowed from it the sum of $2,000, and had given to petitioner a deed to the land levied upon, to secure said loan; that Callahan had conveyed said property to Abercrombie, who assumed, as a part of its purchase money, the debt due by Callahan to petitioner; that Abercrombie executed to Callahan, subject to the deed of petitioner, a deed to these premises, to secure the balance of the purchase money which he was to pay Callahan for these premises, amounting to $1,300; that Abercrombie conveyed this property to Mrs. Estes by deed, in which it was recited that it was made subject to the deeds of petitioner and of Callahan to these premises; that Mrs. Estes had filed a claim to this property; that she was not paying the notes which she had executed to Callahan for the purchase of this property; that she was living on the premises without paying anything whatsoever; that her claim was filed in forma pauperis; that she had demolished certain portions of the house on the land levied upon; and that the house was easily worth $35 per month for rent. Petitioner prayed for a receiver.
Mrs Estes demurred to this petition upon various grounds, which demurrer does not appear to have been passed upon by the court, and subject to her demurrer she filed an answer in the nature of a cross-petition, in which she alleged that she had paid to Callahan $600 of the purchase money of this property, and to Abercrombie $1,400 in a farm; that it was the duty of Callahan to pay his debt to petitioner, as he had made the loan deed to it, and thereby protect her, as he had sold the property to Abercrombie, from whom she had purchased the same; that petitioner and Callahan had conspired together to sell these premises so as to defraud her out of the money which she had paid on the premises; that Callahan defaulted in the payment of the interest coupons due on his indebtedness to petitioner, to permit the whole debt to be declared due and suit to be brought against him, for...
To continue reading
Request your trial