Williams v. William L. Lampkin & Co.

• Decision Date: 31 July 1874
• Citation: 53 Ga. 200
• Court: Georgia Supreme Court
• Parties: Thomas R. Williams, administrator, plaintiff in error, v. William L. Lampkin & Company et al., defendants in error.

53 Ga. 200

Thomas R. Williams, administrator, plaintiff in error, v. William L. Lampkin & Company et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.)

Equity. Attachment. Contempt. Injunction. Continuance. Before Judge Hall. Butts county. At Chambers. January 13th, 1874.

For the facts of this case, see the decision.

D. J. Bailey; Z. D. Harrison; H. Hendrick, for plaintiff in error.

Speer & Stewart; Cabaniss & Turner; Peeples & Howell, for defendants.

Warner, Chief Justice.

This was an application by petition of complainants in an injunction bill, to attach the defendant for contempt for the violation of a restraining order of the judge acting as chancellor, *made in the cause, pending the motion to grant a permanent injunction. The restraining order granted by the chancellor enjoined the defendant from further collecting, having or using the books, notes, accounts, debts, dues, claims, cash, lands, or other property of the estate of Tanner, of which he was one of the administrators, or removing, using, selling, or offering to sell, or converting to cash, any portion of said estate, which was duly served on the defendant. The petition for the attachment set forth the granting of the injunction, the service thereof on defendant, the appoinment of a receiver to take charge of the assets, and alleged that the defendant had violated the injunction by collecting a large amount of assets belonging to the estate of Tanner and converting the same to his own use. The presiding judge, acting as chancellor, granted an order requiring the defendant to show cause why he should not be attached for contempt in violating the injunction, and that a copy of the order be served on the defendant eight days before the time appointed for the hearing thereof. The defendant appeared and demurred tothe complainant\'s petition, which demurrer was overruled, and the defendant excepted. The defendant made a motion to continue the case, which was overruled, and the defendant excepted. The chancellor heard evidence as to the violation of the injunction by both parties, and allowed the defendant to file his answer in explanation of the evidence offered by complainants, and then granted an order that the defendant be imprisoned in the common jail of the county of Butts until he paid the sum of $700 00 to the receiver appointed for Tanner\'s estate, that being the amount collected by him after the service of the injunction, and $25 00 for contempt in violating the injunction, with the cost of the proceeding; whereupon the defendant excepted.

1. The demurrer to the petition was properly overruled. The injunction had been served on the defendant, and he knew the terms of it. It was alleged in the petition that the defendant had violated the injunction by collecting a large amount of assets belonging to the estate of Tanner, and converting *the same to his own use. It would have been technically more correct to have alleged the specific assets of the estate which he collected and converted to his own use, if known to the complainants. But the demurrer admitted that he had collected a large amount of the assets belonging to the estate of Tanner, and converted the same to his own use, whereas, the injunction restrained him from the collection of any part thereof, and having admitted, by the demurrer, that he had collected a large amount of the assets, the legal presumption would be that he had knowledge of the specific assets of the estate, which, by his own act, he had collected and converted to his own use.

2. The motion for a continuance was properly overruled on the grounds stated therefor. The defendant was called on to show cause why he should not be attached and punished for contempt in violating the injunction, and he was served with the rule to show cause eight days before the time appointed for the hearing thereof. The grounds for continuance were, that the defendant did not know what acts of wrong were charged against him, and was taken by surprise by the evidence taken ex parte by the complainants against him. The defendant was notified by the rule nisi served upon him what was the wrong charged against him, to-wit: the...