Whitley v. Berry

31 S.E. 171, 105 Ga. 251, 1898 Ga. LEXIS 492

Opinion

Lumpkin, P.. J.

The Ocmulgee Brick Company was indebted to Berry and also to Whitley. At a sale of its property under an execution, Berry and Whitley became the purchasers and thus acquired a joint ownership thereof. Whitley, with the consent of Berry, afterwards sold a portion of the property and ■collected the proceeds of the same. They were, however, unable to agree upon either a division or sale of the remainder of the property. In this condition of affairs, Berry brought a petition ■against Whitley for the appointment of a receiver to take charge ■of and dispose of the unsold property thus held in common, and make between them a division of its proceeds, of which Berry in his petition claimed a specified proportion. In his answer, Whitley denied Berry’s right to such a proportion, and set forth his version of the manner in which the proceeds of the property .■owned jointly by them should be divided. In these respects the parties were widely at variance. At the hearing both agreed that the appointment of a receiver was necessary and proper. It was a matter of controversy, however, whether Whitley should be required to turn over to the receiver the cash received for the-property which he (Whitley) had sold. It was, under the pleadings, essential to a fair settlement between the parties that-this cash be taken into account. Whitley offered to give a bond ■ to account for the same. Nevertheless, in the order appointing-a receiver the judge directed him to pay over to the receiver a portion of the money derived as above stated. To this much of the order he excepted.

1. The question of practice to which the first headnote relates-was dealt with in Warren v. Mannish, 91 Ga. 399.

2. We do not think the judge committed any error in passing-the order above mentioned. The object of the receivership was-an administration of all the assets jointly belonging to the plain- ■ tiff and the defendant. The money in Whitley’s hands was as-,much a part of these assets as any other item of the property,, and in no view of the matter had Whitley any right to retain in his possession any greater, proportion of the money than would' inevitably fall to his share upon a proper division of the same. His offer to give a bond was properly regarded by the judge as-constituting no reason for allowing him to retain in his possession more of the fund than he was unquestionably entitled to' keep. The prime object of the receivership was to make a division of all the joint assets as to which there was a dispute, and certainly the judge was'right in declining to frame his order in such manner as to deprive the receiver of the custody and control of a portion of these very assets. In short, the receivership-was rightly made broad enough to cover every- item of property as to which there was a controversy between the parties..

Judgment affirmed.

All the Justices concurring: