Carstarphen Warehouse Co. v. Fried

Evans, J. (After stating the facts.) Under the Civil Code, §4937, a creditor may, in one suit, proceed for judgment on his debt and to set aside a fraudulent sale made by his debtor. DeLacy v. Hurst, 83 Ga. 223. But in such an action the plaintiff would not be entitled to the .extraordinary remedies of injunction and receiver, if it appeared that an attachment against the fraudulent debtor (Civil Code, §§4543-4547) would afford complete and adequate relief. Booth v. Mohr, 122 Ga. 333. The act of the General Assembly approved August 17, 1903, declares that a sale of a stock of goods, wares, and merchandise in bulk, not in compliance with the provisions of the act, shall, as to any and all creditors of the vendor, be conclusively presumed to be fraudulent. Act's of 1903, p. 92. The petition in this case alleges that the sale of the stock of merchandise was in bulk, and that there was a failure by the vendor to comply in essential particulars with the terms of this act of the General Assembly. The sale was therefore inoperative and void, as to creditors, upon the ground of fraud, and the plaintiff’s remedy by attachment against a fraudulent debtor would have afforded him an adequate legal remedy. On the rule to show cause why a permanent receiver should not be appointed and the writ of injunction should not issue as prayed, the defendants urged by demurrer that this legal remedy was both available and adequate, and assigned other reasons for denying the extraordinary relief sought. The court refused to grant the prayers of the petition for such relief, and vacated the order previously passed which provided for the appointment of a temporary receiver. We think the plaintiff had a complete statutory remedy by attachment, and that the court properly declined to appoint a permanent receiver and grant the prayer for injunction. Having reached this con547 elusion, it is not necessary to discuss the other matters urged by the defendants upon the interlocutory hearing in opposition to the prayers of the plaintiff for injunction and receiver. Judgment affirmed. All the Justices concur.