Eugene S. Ballin & Co. v. M. Ferst & Co.

Bleckley, Judge. 1. The trunk from which these four writs of error are offshoots or branches, is the bill in equity (still pending in the court below) filed by M. Ferst & Company et al. vs. Von Seybold et al. Exceptions were, in terms of the Code, entered pendente lite, at the complainants’ instance, to two rulings of the court, one admitting Ballin & Company, with two other firms, to become parties defendant, on their own motion, and the other refusing to dismiss the bill, as to these same defendants, on motion of the complainants. That these rulings might have been brought here by the complainants for review, if they had thought proper to make them the subject of a writ of error, is not improbable: 53 Georgia Reports, 443. But, not choosing to avail themselves of that remedy, they simply entered thejr exceptions pendente lite. The time for considering exceptions thus entered is not until the case has been finally terminated in the court below, and a [553] writ of error has, thereafter, been brought by one of the parties. Then error may be assigned upon such exceptions. There is no provision of law for an earlier adjudication: Code, section 4250. 2. The motion by Ballin & Company to dismiss-the bill had other objects besides. In so far as it sought to dismiss the bill, some of its grounds were out of place, others out of season, arid none of them, we think, sufficient. The- ground that jurisdiction was not in Chatham superior court was not good whether aimed at the venue or at the tribunal. The ground of no equity in the bill, if intended to suggest a common law remedy, was matter for demurrer: 27 Georgia Reports, 353; or, if intended to deny equity, in a more strict and proper sense, was matter either for demurrer or for a motion to dismiss at the hearing: Ibid. In 32 Georgia Reports, 669, a motion, for want of equity in the former sense, was entertained, but no point seems to have been made that a demurrer was necessary. If the point had been made, 27 Georgia Reports, supra, would have ruled it in the affirmative. The ground that all the equity was sworn off by the answer, .was out of place, for the answer, on a motion to dismiss the bill, cannot be considered: Webster vs. Thompson, 55 Georgia Reports, 431. The same may be said of the ground that, pending the bill, the persons composing the two firms of M. Eerst & Company, and S. Kaufman & Company, had been adjudicated bankrupts. This ground is further dealt with under the next head. The motion referred, in a general way, to the grounds contained in a demurrer filed by the movants, and made those grounds one of the grounds of the motion itself. But the demurrer did not go to the whole matter of the bill; neither is the overruling of the demurrer one of the decisions of the court complained of; and that is the decision that disposed of the legal questions which the grounds of demurrer embraced. The defendants to the-bill were numerous, and the motion to dismiss made by Ballin & Company, was unrestricted in respect to parties. If themovants had wanted the bill dismissed as to themselves only [554] the complainants were ready to accommodate them. Ballin & Company, with others, became parties voluntarily, in spite of the complainants; and the latter sought to let them go, but they would not depart. -If one defendant can have the bill dismissed as to all, upon his separate motion, it surely cannot be done, as a general rule, except at the hearing. When the whole case is up, and all the parties on trial, perhaps the motion of one may sweep it away. We think, too, that where all the defendants join in a motion to dismiss, or where one moves that the bill be dismissed as to him only, the proper time for the motion is, usually, at the hearing and not before. Whatever comes up before, by way of direct defense to the main case, should be presented by the appropriate instrument of pleading, such as demurrer or plea. For an early hearing of these, provision is made by the Code, section 4191; but there is no provision for bringing on motions to dismiss, as distinct from a final trial of the cause. It is said in 27 Georgia Reports, supra, that a motion to dismiss for certain matters may be made at any time; but that means doubtless, that up to final decree, it is never too late; not that such a motion is always in order whenever the defendant may think proper to make it. For default in prosecuting the ease, or for non-compliance with rules of practice, or with legal orders of the court, motions to dismiss can, of course, be entertained- whenever sound discipline and the due administration of justice may require. 3. Another defendant firm, that of Schuster, Son & Company, moved to dismiss the whole bill, the single ground of their motion being the adjudication of bankruptcy referred to above. Bankruptcy is a fact, and when set up as a defense by one or all of the defendants, should be pleaded in some regular way. Unless admitted as a fact by the opposite party, with a concession of its effect as barring all the relief prayed for in the particular case, it is not, of itself, cause for dismissing the bill in advance of the hearing. The temporary suspension of proceedings provided for by the bankrupt act is another matter. [555] 4. In connection with their motion, Schuster, Son & Company demurred, generally, to the bill, for want of equity. This was a defense in which they were joined by none of their co-defendants; and had the demurrer been sustained their real object, perhaps, would not have been accomplished; for they did not want the bill dismissed as to themselves alone, and a separate judgment .on their demurrer could have gone only to that extent. The main case was not on trial, so as to enable the court to make a final decree disposing of the whole, nor was it ripe for trial. 5. But, passing to the merits of the demurrer, we think there is some equity in the bill; how much need not be further indicated now than appears in the fifth head-note. The bill is wanting, it is true, in a direct and distinct averment of ignorance on the part of complainants as to who are all the persons indebted to H. Mayer & Company; but from what is averred as to the amount, character and custody of the assets, we think it reasonable to conclude that the complainants need the discovery from Von Seybold for which they pray, and that there are probably debtors whom they cannot, for want of full information, reach by garnishment. Even if all could thus be reached, there are still multiplicities, conflicts and complications which adapt the case to equity jurisdiction; and the occasion for early acts of diligence in preserving some of the assets unimpaired would seem-to render the superintendence of that jurisdiction essential, and its extraordinary remedies appropriate. We should abstain, therefore, from disturbing the refusal of the court to dissolve the injunction and vacate the receivership, on the motion of Ballin & Company, even if there were no doubt of our power to review interlocutory rulings of that class. 6. Upon the point urged in the argument, that the equity of the bill was not aided by Von Seybold’s relation to it, for the reason that he, being only an agent, was not a proper party, the views of the court are sufficiently set out in the sixth head-note. His principals were non-residents, and he had charge of their paper, collaterals and other resources, arising' [556] out of the banking business which he had conducted in their behalf. These were the assets sought to be reached and secured by the bill. From the nature of the business his knowledge was peculiar, if not, as to some matters, exclusive; and the discovery needed by creditors could not be coerced from his absent principals, if, indeed, they possessed all the knowledge that lie did. We do not mean to say that the agent, as a party defendant, would be a full substitute for the principals. These, though not within the jurisdiction, should, doubtless, have been made parties also, and served by publication or otherwise. The omission to make them parties at first in due form was afterwards supplied by amendment. 7, 8, 9, 10. The other points ruled by the court may be left to stand on the statement of them in the head-notes. Judgment affirmed on the first two writs of error, and reversed on the other two.