Wood & Lovingood v. Haynes, Henson & Co.

Lumpkin, Justice. Wood & Lovingood, an insolvent firm of traders, made a voluntary assignment for the benefit of their creditors, to one William Galt. There were several [186] omissions from, and inaccuracies in, the schedule of assets and schedule of creditors, the nature of which will appear from the reporter’s statement. Because of these omissions and inaccuracies, certain creditors filed their petition to set the assignment aside, and for injunction and receiver. The court granted the injunction, and appointed Galt receiver to hold the assets of the defendants under order of the court until the final hearing. We are asked to reverse this action of the court below. To do this, it would be necessary to hold that there was an abuse of discretion. In our opinion, there was none. While it is true that every error or omission in the schedules which the law requires shall be attached to voluntary assignments by insolvent debtors would not be sufficient to ixxvalidate an assignment, it is also true that such errors axid omissions may, and usually will, produce this result. If the schedules are ixx the main complete and accurate, and through mistake or mere inadvertence something of no great importance is left out, and it is manifest there was no intexitioix to defraud, the assignment may very properly be upheld. An intention to defraud or deceive in any material matter will, however, always vitiate the assignment; and even when no such intention really exists, an assignment should be set aside when there are oxnissioxis of important matters from the schedules attached to it, or when these schedules contain inaccuracies of a substantial nature. As ruled in Turnipseed et al. v. Schaefer et al., 76 Ga. 109, it is impossible to lay down any positive and definite rule as to what may be safely omitted from such schedules, when such omissions are occasioned by oversight or inadvertence, and without intention on the part of the assignor, or any pux’pose to mislead creditor’s by filing a false, deceptive or incomplete schedule. The doctrine announced in the second head-note of that case very cleardy and accurately states what the rule should [187] be in such cases, and attention is also directed to the opinion of Mr. Justice Hall, which evidently was carefully prepared after thorough and mature consideration. The conclusion seems to be that in each particular case, whether the assignment should stand or fall should be determined with reference to the number, materiality and importance of the omissions and inaccuracies, and also with reference to the question whether they were made by mere oversight and inadvertence, or deliberately and with intention to defraud. See also Stultz & Blair et al. v. Fleming & Bussey et al., 83 Ga. 14. In the present case, the judge below, by appointing the assignee receiver and granting the.injunction prayed for, adopted a course which will preserve the rights of the contending parties until the jury, at the final hearing, shall have decided, in view of all the surrounding facts and circumstances, and under proper instructions from the court, whether the assignment should stand or be set aside. This was a wise and proper direction to give to the case. Judgment affirmed.