Virginia-Carolina Chemical Co. v. Everett

101 S.E. 805, 149 Ga. 681, 1920 Ga. LEXIS 367

• Court: Supreme Court of Georgia
• Decided: January 14, 1920
• Docket: No. 1499
• Status: Published

Opinion

Atkinson, J.

The maker of two promissory notes, being insolvent, was engaged in a lucrative business and causing profits derived therefrom to be deposited in a bank in the name of his wife, for the purpose of defrauding his creditors. Having also purchased a certain sawmill outfit, he had paid most of the purchase-price and was about to pay the balance and cause, the vendor to transfer legal title to the property to a third person, intending thereby to defraud his creditors. In an equitable suit by the payee of the notes against the maker and the several other persons mentioned, the petition as amended alleged all that is stated above; and further, that prior to the filing of this suit the plaintiff had brought an action on one of the notes, and the same was in default as to defense at the trial term, and the only reason judgment was not entered against the defendant was that the court adjourned without calling cases, except some of special importance; but that at a term subsequent to the filing of the equitable petition a judgment upon the note had been duly entered in favor of the plaintiff, and execution had been issued and a return of nulla bona duly entered thereon. The prayers were for (a) injunction to prevent the disposal of the sawmill outfit, (6) appointment of a receiver for defendant’s equity in the sawmill outfit, “and all other equities that defendant may have,” (c) “that process do issue, directed to said defendant, requiring him to be and appear at the next term of this court, to show cause why the prayers in the petition should not be granted.” Held, that the principle announced in Cunningham v. Williams Co., 135 Ga. 249 (69 S. E. 101), is applicable; and there was no error in sustaining a general demurrer to the petition and dismissing the action.

No. 1499. January 14, 1920.

Equitable petition. Before-Judge Kent. Twiggs superior court. February 26, 1919.

E. B. Weatherly, for plaintiff. L. D. Moore, for defendants.

Judgment affirmed.

All the Justices, concur.