Stinson v. Williams

35 Ga. 170

• Court: Supreme Court of Georgia
• Decided: December 15, 1866
• Status: Published

Opinion

Walker, J.

In this case, we adopt as our own the opinion of Judge Warner. After stating the principal allegations of the bill, he says:

“ The complainant, it will be observed, is a bill holder of said corporation, and his claim is predicated upon that fact.

By the 21 th section of the amended Charted, (Prin. Dig. 367) incorporating said company, it is expressly declared that ‘ the said Railroad, and every part of it, and all materials purchased for its construction, and all the locomotives of said company, and every species of property owned by the company, shall be pledged, in the first place, for the payment of their banking operations, and one-half of the capital set aside for banking purposes.’ The defendant’s covenant and mortgage to the company constitute one £ species of property owned by the company ; ’ it is a debt due by him to the company, out of which the complainant, as a bill holder, according to the charter, is entitled to be paid. In my judgment, the complainant has alleged such facts, when taken in connection with the act of incorporation, (a public law, of which the Court is bound to take notice,) as will entitle him to relief in a Court of Equity. The main facts which entitle him to relief are issuable facts. When a judgment cred-i tor seeks the aid of a Court of Equity, to reach the equitable assets of his debtor, not the subject matter of levy and sale, he must show that he has pursued his legal remedies to every available extent. Stephens vs. Bell, 4 Ga. R. 319. The complainant has brought himself within that rule. The debt owing by the defendant to the corporation cannot be reached by the ordinary process of levy and sale. It is not apparent on the face of the bill that there are other parties necessary to enable the Court to make a decree. As a matter of course, all proper and necessary parties ought to be before the Court when a final decree is made. The complainant may sue on behalf of himself and such other creditors as may choose to come in under the decree, if, indeed, there be any others. But, up to the time of the decree, it is only a suit between party and party, and the plaintiff is master of his own case. McDougald vs. Dougherty, 11 Ga. R. 588. Assuming, as the motion to dismiss the bill does, that all the allegations contained therein are true, as therein set forth, the motion to dismiss the same is refused.

HIRAM WARNER, J. S. C. C. C.”

We deem it unnecessary to add anything to this clear exposition of the law of the case. Eor the reasons given by Judge Warner, we affirm the judgment.

Judgment affirmed.