Rodgers v. Stern & Co.

37 S.E. 877, 112 Ga. 624, 1901 Ga. LEXIS 25

• Court: Supreme Court of Georgia
• Decided: January 25, 1901
• Status: Published

Opinion

Simmons, C. J.

Stern & Company and two other mercantile companies filed an equitable petition in which they alleged that Mrs. C. C. Rodgers was indebted to them in certain amounts, that the debts were due, that payment had been demanded and refused. They also alleged that they represented “ more than one third of the unsecured creditors.” They further alleged that Mrs. Rodgers had made a bill of sale to her two stepsons, which was without consideration, made for the purpose of delaying and hindering creditors, and void as against them. They prayed personal judgment against her on each of their claims, and that the bill of sale be declared a nullity and ordered canceled. They also alleged that a number of creditors had secured mortgages on the stock of goods of defendant’s store in the city of Atlanta, Eulton county, Georgia, and had also had attachments issued and levied upon the stock of goods in .the other store of defendant, which was in Gwinnett county, Georgia; that the alleged fraudulent bill of sale purported to convey this Gwinnett county stock of goods; that on account of the foreclosure of the mortgages, the levy of the attachments, and the conflicting claims of the various creditors, equity should intervene to prevent a multiplicity of suits and that the property might be sold to the greatest advantage. They prayed for an injunction and the appointment of a receiver. The judge granted an injunction and appointed a receiver. James Rodgers, the husband of the defendant, the two grantees in the bill of sale, and the creditors who held mortgages, were all made parties defendant. A guardian ad litem was appointed to represent the grantees in the bill of sale, both of them being minors. Answers and cross-bills were filed, and the case was referred to an auditor. On the hearing before the auditor it appeared that the original petitioners did not represent one third of the unsecured indebtedness; whereupon the defendants moved the auditor to dismiss the case. He overruled the motion, and they excepted to this ruling. On the hearing of the exceptions before the judge of the superior court, he sustained the ruling of the auditor in refusing to dismiss the case, and the defendants excepted.

1. We think that there was no error in the ruling complained of. While the petition contained several allegations which' are required in proceedings under section 2716 of the Civil Code, there were other allegations which would give equity jurisdiction independently of that section. The petition alleged that Mrs. Rodgers owed the petitioners certain amounts of money, that she had made a fraudulent bill of sale to her stepsons and mortgages to various creditors, and that, on account of these things and the various attachments which had been levied and the conflicting claims of creditors, the intervention of a court of equity was necessary in order to prevent a multiplicity of suits. If this suit could be regarded as simply a proceeding under the traders’ act (Civil Code, § 2716), it should have been dismissed, for there was no allegation that Mrs. Rodgers was a trader, and the evidence failed to show that the plaintiffs represented one third of her unsecured indebtedness. But the suit can not be regarded as merely a proceeding under that act, because, as above stated, the petition contained other allegations which, under our uniform procedure act, authorized the intervention of a court of equity. The petition prayed for judgment on the law side of the court, and on the equity side for the annulment of a fraudulent bill of sale. This feature of such a bill was fully discussed in DeLacy v. Hurst, 83 Ga. 223, and it is needless to elaborate here the reasoning of that case. We have closely examined tbe record in tbe present case, and it does not appear that any exception was taken to the appointment of tbe receiver or tbe granting of tbe injunction. We therefore do not pass upon tbe propriety of tbe judge’s action in these matters. See, however, upon this point, tbe case of Stillwell v. Savannah Grocery Co., 88 Ga. 100.

2. On tbe bearing before tbe auditor, certain evidence offered by tbe defendants was rejected. To tbe rulings of tbe auditor rejecting this evidence tbe defendants filed several exceptions. We think that tbe exceptions were not in proper shape. Thus: “ Tbe auditor erred in sustaining tbe objections of plaintiffs to tbe 7, 8, 9, 10, 11, 12, 13, 14, and 15th direct interrogatories to Mrs. C. C. Rodgers, and answers thereto, because ” (and here followed reasons why tbe evidence was admissible). Again: “ Tbe auditor erred in rejecting tbe questions and answers in J. Hodge McLean’s evidence, because [giving reasons] tbe evidence should have been admitted.” Tbe exception to tbe rejection of tbe rest of tbe evidence excluded was in form like tbe first of tbe two exceptions just copied. This court has often ruled that it can not consider such exceptions, — exceptions which would, in tbe present ease, necessitate our trying to find in a record of nearly 150 typewritten pages the exact evidence to which tbe exceptions are intended to refer. Torras v. Raeburn, 108 Ga. 345, and cases there cited.

3. Tbe only exceptions remaining to be considered are exceptions of fact. We have read tbe evidence as reported in tbe record, and find that it fully authorized tbe finding of tbe auditor. Tbe trial judge, therefore, committed no error in overruling these exceptions of fact.

Judgment affirmed.

All the Justices concurring.