Zachry v. Industrial Loan & Inv. Co.

• Decision Date: 02 July 1936
• Docket Number: 11077.
• Parties: ZACHRY v. INDUSTRIAL LOAN & INVESTMENT CO. et al.
• Court: Georgia Supreme Court

186 S.E. 832

182 Ga. 738

ZACHRY v. INDUSTRIAL LOAN & INVESTMENT CO. et al.

No. 11077.

Supreme Court of Georgia

July 2, 1936

Syllabus by the Court.

1. Where the only original plaintiff in an equitable petition asks by amendment that a named party, who has a case concerning the same subject-matter in a court without equitable jurisdiction, be enjoined from proceeding with his suit in a court of law, the judge of the superior court is clothed with full jurisdiction as to whether he shall stay the suit in the court of law and require the plaintiff in that suit to adjudicate his rights in the court of equity.

(a) The judge is fully authorized to determine, in the exercise of a sound discretion, all questions of taxing of costs in the equitable proceeding.

(b) The court did not err in holding, while requiring the Industrial Loan & Investment Company to intervene, that this company should not be liable for any part of the costs in the equitable proceeding.

2. An assignment of error is insufficient which requires the court to refer to the record in order completely to understand the movant's assignment of error. A movant for new trial is required to spare this court from searching the record, and is obliged to present in an assignment of error a specific statement of the alleged error which is supported by the record. However, in this case no harm accrues to the plaintiff in error, in view of the ruling upon the same question in Bussey v. Porter (Ga.Sup.) 186 S.E. 826.

3. There is no merit in the fifth ground of the motion for new trial, since under the evidence the lien sought to be asserted by W. H. Zachry against Alfred Mabry was against Alfred Mabry and the assets owned by Alfred Mabry, and Zachry's bill of sale does not purport to be signed by the firm of Bussey-Mabry Manufacturing Company, and no amendment to the original petition was offered. Without amendment, the pleadings and the evidence preclude a recovery against a different partnership, to wit, the firm of Bussey-Mabry Manufacturing Company, which could not have been subjected to the judgment sought by the plaintiff in error-the interest of Bussey in a different partnership. The allegation in this ground that the court erred in finding that by "fraud, accident, or mistake the transfer was not made at the time Blakely got Porter's money" is without merit, as this finding is supported by the evidence. The court did not err in "holding that the Industrial Loan and Investment Company's claim was superior to that of the plaintiff, W. H. Zachry, in the sum of $350."

4. An exception to a decree is no ground for a new trial.

5. Rulings on pleadings afford no ground for new trial.

6. The evidence authorized the findings of the judge, and there was no error in overruling the motion for a new trial.

Error from Superior Court, Bibb County; Malcolm D. Jones, Judge.

Suit by W. H. Zachry against Alfred Mabry, wherein the Industrial Loan & Investment Company and others intervened. To review an adverse judgment, W. H. Zachry brings error.

Affirmed.

Sara C M. Torbert and Walker & Kilbride, all of Atlanta, for plaintiff in error.

Jones Johnston, Russell & Sparks, Grice & Grice, and Arthur Lewis all of Macon, for defendants in error.

RUSSELL Chief Justice.

On November 14, 1934, the Industrial Loan & Investment Company foreclosed, in the municipal court of Macon, a bill of sale executed by Alfred Mabry, which conveyed certain personal property and recited that it was given for the purpose of securing a note for $345 of even date therewith, "as well as any other indebtedness the grantor may hereafter owe to the company, in whatever capacity and however evidenced the total of which will with the indebtedness above described not exceed the sum of $350." On the following day W. H. Zachry filed in Bibb superior court his petition against Mabry, praying for equitable foreclosure of a bill of sale executed by him to Mabry, conveying substantially the same property as that described in the Industrial Loan & Investment Company's bill of sale, and praying for appointment of a receiver. By amendment Zachry prayed that Industrial Loan & Investment Company be restrained from further proceeding with the foreclosure in the municipal court, and that it be made a defendant in the equitable proceeding. A rule nisi was issued, calling on the Industrial Loan & Investment Company to show why it should not be required to intervene in the superior court, and on a hearing the court passed the following order: "The within rule nisi coming on to be heard, and the Industrial Loan & Investment Company having answered in response to said rule and having consented to file its intervention and be made a party in the within case upon the express condition that it not be taxed with any cost in this proceeding as against its priority claim alleged in the sum of $350: it is therefore ordered that the said rule nisi be made absolute, and that Industrial Loan and Investment Company be required to file its intervention herein and be made a party plaintiff upon the express condition that whatever amount it shall be determined that it be entitled to, under and by virtue of its secured and priority claim, shall be ordered paid to it without deduction for any part of the costs of this proceeding." In response to this order the Industrial Loan & Investment Company filed its intervention praying that it be given a prior lien on the property described in its bill of sale to the amount of $350.

J. H. Porter filed an intervention setting up that Mabry and David T. Bussey had been in partnership under the name of Bussey-Mabry Manufacturing Company; that on December 1, 1933, Mabry came to intervener and stated that the firm of Bussey-Mabry Manufacturing Company owed T. T. Blakely $1,000 secured by a bill of sale to the personal property of the partnership; that if Porter would lend or secure for Mabry $1,000 with which to pay Blakely, Mabry would have the note and bill of sale transferred to Porter as security; that Porter thereupon indorsed Mabry's note at a named bank, and Mabry thus procured the money and paid Blakely, but no transfer of the papers was made as Mabry promised; and that Porter was still liable as indorser on the note on which Mabry obtained $1,000. He prayed that he be decreed to be the owner of said note and bill of sale, and that his claim be decreed to be a prior lien on the property described. David T. Bussey filed an intervention asserting that the partnership of Bussey-Mabry Manufacturing Company had been dissolved, but that Mabry had failed to account with Bussey for Bussey's share of the business. He prayed an accounting of the partnership property, and that no lien be awarded to other creditors of Mabry, except subject and inferior to Bussey's claim.

By consent the case was submitted to the judge to pass on all issues of law and fact. After hearing evidence he made a finding of fact, and rendered a final decree. This decree adjudged Porter to be the owner of the Blakely note and bill of sale, and awarded to him a special lien on the property covered by this bill of sale for $1,000 and interest. The Industrial Loan & Investment Company was awarded a lien on such of the property covered by its bill of sale as was not included in the Blakely instrument, to the extent of $350. Zachry was decreed a lien on the property described in his bill of sale (except such as was included in the Blakely bill of sale), subject to the $350 lien awarded the Industrial Loan & Investment Company. See Bussey v. Porter (Ga.Sup.) 186 S.E. 826. Zachry's motion for new trial was overruled, and he excepted. He assigned error also on the order relieving Industrial Loan & Investment Company of the payment of cost. The grounds of the motion for new trial appear hereinafter.

1. We consider first the exceptions pendente lite. It appears that on April 11, 1935, there having been presented a petition for receiver, accounting, injunction, etc., in the case of W. H Zachry v. Alfred Mabry, the question arose of allowing certain interventions of various parties. The court was considering whether the Industrial Loan & Investment Company should be made a party in the suit of Zachry against Mabry. The Industrial Loan & Investment Company had a pending suit in the municipal court of Macon against Alfred Mabry, in which it was proceeding to foreclose a bill of sale given to secure a debt. On December 1, 1934, the superior court was considering primarily the question of making permanent a temporary receivership which had been granted upon the petition of Zachry, and the question as to allowance of the interventions of various parties. It does not appear from the record that the Industrial Loan & Investment Company asked to intervene in the proceeding brought by Zachry against Mabry. But it does not appear that there were not good reasons authorizing the court to enjoin the proceeding in the municipal court, and to require the Industrial Loan & Investment Company to file an intervention. At this hearing the court passed the order quoted above, expressly providing "that whatever amount it shall be determined that it be entitled to under and by virtue of its secured and priority claim, shall be ordered paid to it without deduction for any part of the costs in this proceeding." We know of no rule of law which forbids the direction as to costs given by the judge, and none has been cited. The case is in equity, in which the powers of a judge are very extensive. It seems to us that the direction as to costs was appropriate, assuming, as we must, that the order that the Industrial Loan & Investment Company should intervene was not for the benefit especially of that company, but rather to further the prayer of Zachry for an injunction...