Fountain v. Bryan

Supreme Court of Georgia

Fountain v. Bryan

166 S.E. 766, 176 Ga. 31, 1932 Ga. LEXIS 376

CourtSupreme Court of Georgia

DecidedNovember 18, 1932

DocketNo. 9095

StatusPublished

Cited by6 cases

This text of 166 S.E. 766 (Fountain v. Bryan) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Fountain v. Bryan, 166 S.E. 766, 176 Ga. 31, 1932 Ga. LEXIS 376 (Ga. 1932).

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Opinion

Hill, J.

This is a contest between the intervenor (Bryan), who is the holder and owner of certain promissory notes and a security deed dated January 18, 1928, and judgment creditors whose executions were issued, dated, and recorded more than ten days after the rendition of the judgments, and subsequently to the date of the notes and security deed held by the intervenor.

The Civil Code (1910), § 3321, provides that when executions are recorded within ten (10) days from the date of the judgment, the lien of such judgment dates from the rendition thereof; •and when the execution is entered upon the docket after the ten days, the lien shall date from the entry. Acts 1889, p. 106; Acts 1921, p. 115.

“The title to an exemption set apart to a bankrupt by a court of bankruptcy is in the bankrupt, and can be alienated and sold by him. . . In such a case, a vendee who purchases from the bankrupt before the goods are set apart under the State law by the ordinary gets a good title thereto, unless the sale was made to delay or defraud creditors of the vendor who had the right to subject the exemption, and this intention was known to the pur[34]*34chasers.” Pincus v. Meinhard, 139 Ga. 365 (2 a) (77 S. E. 82); Morris Fertilizer Co. v. White, 158 Ga. 38 (122 S. E. 692).

“An intervenor takes the case as he finds it, and can not be heard to make objections to the pleadings or process which the defendant vouching him into court did not urge.” Charleston & Western Carolina, Ry. Co. v. Pope, 122 Ga. 577 (50 S. E. 374). Having been permitted to come into the cause, because of his interest in the subject-matter of the suit, the intervenor is restricted io the issue as to such matter, and can not insist on raising or trying other issues not involved. Limitations on this rule rest on the obvious ground that the parties to the original suit have no power io waive or otherwise annul the substantial rights of the intervenor. . . Any judgment or other determination made before he became a party has not the effect of res judicata against him. 31 R. C. L. 692, § 31; 47 C. J. 115, § 221.

Applying the foregoing rulings to the agreed statement of facts, which were submitted to the judge without the intervention of a jury, he did not err in finding in favor of the. intervenor.

Judgment affirmed.

All the Justices concur.

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Hill, J.

This is a contest between the intervenor (Bryan), who is the holder and owner of certain promissory notes and a security deed dated January 18, 1928, and judgment creditors whose executions were issued, dated, and recorded more than ten days after the rendition of the judgments, and subsequently to the date of the notes and security deed held by the intervenor.

The Civil Code (1910), § 3321, provides that when executions are recorded within ten (10) days from the date of the judgment, the lien of such judgment dates from the rendition thereof; •and when the execution is entered upon the docket after the ten days, the lien shall date from the entry. Acts 1889, p. 106; Acts 1921, p. 115.

“The title to an exemption set apart to a bankrupt by a court of bankruptcy is in the bankrupt, and can be alienated and sold by him. . . In such a case, a vendee who purchases from the bankrupt before the goods are set apart under the State law by the ordinary gets a good title thereto, unless the sale was made to delay or defraud creditors of the vendor who had the right to subject the exemption, and this intention was known to the pur[34]*34chasers.” Pincus v. Meinhard, 139 Ga. 365 (2 a) (77 S. E. 82); Morris Fertilizer Co. v. White, 158 Ga. 38 (122 S. E. 692).

“An intervenor takes the case as he finds it, and can not be heard to make objections to the pleadings or process which the defendant vouching him into court did not urge.” Charleston & Western Carolina, Ry. Co. v. Pope, 122 Ga. 577 (50 S. E. 374). Having been permitted to come into the cause, because of his interest in the subject-matter of the suit, the intervenor is restricted io the issue as to such matter, and can not insist on raising or trying other issues not involved. Limitations on this rule rest on the obvious ground that the parties to the original suit have no power io waive or otherwise annul the substantial rights of the intervenor. . . Any judgment or other determination made before he became a party has not the effect of res judicata against him. 31 R. C. L. 692, § 31; 47 C. J. 115, § 221.

Applying the foregoing rulings to the agreed statement of facts, which were submitted to the judge without the intervention of a jury, he did not err in finding in favor of the. intervenor.

Judgment affirmed.

All the Justices concur.

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Bluebook (online)

166 S.E. 766, 176 Ga. 31, 1932 Ga. LEXIS 376, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fountain-v-bryan-ga-1932.

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