Warren v. Bunch

• Decision Date: 31 October 1887
• Citation: 80 Ga. 124
• Parties: Warren, administrator. vs. Bunch et al.
• Court: Georgia Supreme Court

80 Ga. 124

Warren, administrator. vs. Bunch et al.

Supreme Court of the State of Georgia

OCTOBER TERM, 1887.

Practice in superior court. Receivers. Equity. Insolvency. Before Judge Roney. Columbia superior court. March term, 1887.

Before the bill was filed, the sheriff twice sold and the defendant twice bought the land in controversy as the property of one of the complainants, first under a mortgage fi. fa., and then under a general fi. fa., and the sheriff made an effort to put him in possession, but did not completely dispossess the complainants, and they, as the facts indicate, pushed the defendant entirely out. Pending the bill, a receiver, appointed at the instance of the defendant, took possession of the land and rented out the same. The bill was dismissed on demurrer for want of jurisdiction over the person of the defendant. See Caswell vs. Bunch, 77 Ga. 504. On moving to enter the remittitur, the defendant moved for an order to have the land turned over to him as a purchaser thereof at sheriff's sale, he contend-ing that the sheriff had put him into possession under that purchase. The remittitur was entered, and the motion as to disposing of the property was set down for hearing on a named day in vacation. It was heard accordingly, but no decision was that day rendered. On the following day, the complainants gave notice of a motion to reopen the hear, ing in order to introduce certain affidavits. The motion to reopen was made accordingly, the hearing was reopened and the affidavits admitted, the defendant\'s counsel objecting. The motion of defendant that the receiver be ordered to turn the property over to him was denied, and the chancellor ordered that it be re-delivered to the complainants (from whom the receiver, as the chancellor held, took it), that the tenant under the receiver attorn to them, and that the balance of rents in the receiver\'s hands, after paying expenses and certain costs, be paid to complainants.

Defendant excepted, alleging, 1st, want of power to order the property into any custody but his, the bill being dismissed; 2d, want of power to reopen the hearing; 3d, inadmissibility of the affidavits because taken em parte, no part of the record, and not marked as filed; 4th, error in holding that the complainants were in possession at the filing of the bill, and that the receiver took from them; 5th, error in ordering possession to be surrendered to complainants, and not determining who was lawfully entitled to possession; 6th, error in ordering the overplus of rents paid to complainants, they being conceded to be insolvent; 7th, error in deciding contrary to evidence, justice and equity.

Frank H. Miller and Wm. K. Miller, for plaintiff in error.

Salem Dutcher and C. H. Cohen, contra.

Bleckley, Chief Justice, (after stating the above facts.)

1. A summary bearing before the chancellor in vacation may, in the exercise of his discretion, be reopened for moreevidence. Why not? He sits as chancellor to determine matter pending before him in chambers, and if he lacks information upon it, why may h...