Burts v. Loyd

45 Ga. 104

• Court: Supreme Court of Georgia
• Decided: January 15, 1872
• Status: Published

Opinion

Montgomery, Judge.

The administrator, being sued by Loyd and other creditors, filed a bill to marshal assets, alleged insolvency of the estate, and prayed that the common law suits be enjoined. The claims of the creditors were conflicting, and the amounts of the claims disputed by the administrator.

The Chancellor granted a modified injunction, permitting the creditors to go on at common law and obtain their judgments for whatever amounts might be found to be due, but decreeing that the judgments should not bind the administrator personally, or be enforced until the final decree. Upon the passing of this interlocutory order, Loyd filed his petition under what are known as the Garsed Acts of Congress, of 1866 and 1867, for the removal of his common law suit to the Circuit Court of the United States, Loyd being a nonresident, by admission, although that fact does not appear from the record. The Court granted the order to remove, and the administrator excepted. We think the Court erred. The common law suit, with several others, had become merged into the bill. A removal of any one of the suits dissolved the injunction, ipso facto, as to that suit: McLeod vs. Duncan, 5 McLeod, 342; Bowen vs. Kendall, 23 Law Reports, 538. The administrator might have again enjoined in the United States Court, but how could that Court determine the - pro rata to which. Loyd might be entitled oat of the assets in the hands of the administrator? “A final determination of the controversy, so far as it concerns him,” cannot be made in that Court “ without the presence of the other defendants as parties in the cause,” made by the bill. And the administrator cannot carry them there in any new bill he may find it necessary to file in that Court. Congress certainly could not have intended to so encumber the administration of estates, in all the States, as would be the result of permitting every non-resident creditor of an insolvent estate to have his part of the case made by the administrator’s filing a bill to marshal assets removed to the United States Courts. The present case is much stronger against the removal than Peters vs. Peters, 41 Georgia, 242.

The judgment of the Court is reversed.