James v. Park

Evans, P. J. (After stating the foregoing facts.) The receiver of the Bank of Blakely proceeded against James for a receivership, injunction, and certain other equitable relief. One of the claims of the plaintiff was, that, as to the Helen Lumber Company notes, James was a trustee by reason of the facts alleged. James averred in his answer that these notes were not impressed with a trust, and that they belonged to him. The court did not undertake to place James’s property in the hands of an officer appointed by it, but restrained him from disposing of the notes except on prescribed conditions. Afterwards the court revoked sol much of the injunction as applied to the Helen Lumber Company notes, and ordered James to “surrender instanter into the possession of the plaintiff” such of the notes as were in his possession, and to “pay instanter into the hands of the plaintiff” the proceeds of such as the court found he had collected. As we construe the original order, the notes were never placed in custodia legis, but only a conditional injunction was granted against the disposition of them by James. The subsequent order revoked so ■much of the restraining order as granted leave to James to negotiate a sale of the notes subject to the approval of the court, and peremptorily ordered James to turn them over to the plaintiff, who was claiming an adverse title, before that title, which had been attacked in the pleadings, had been finally adjudicated. We think the pleadings made an issue of fact as to the bank’s equitable ownership of the Helen Lumber Company notes. James joined issue with the bank as to its title to the Helen Lumber Company notes; and under our system of practice the court was without power at an interlocutory hearing to summarily pass the possession of these notes to the plaintiff, in advance of a trial on the issue of title. Luxury Fruit Co. v. Harris, 142 Ga. 607. Our code provides that at any time in the progress of an equitable cause, if any portion of the same is ready for decree, the court may pass such interlocutory decree as will expedite the final hearing; but if any questions of fact are involved the judge should not finally decree thereon without first submitting them to a jury. Civil Code (1910), §§ 5420, 5422. It will be observed that the defendant is not punished for the violation of the injunction. Judgment reversed. All the Justices concur.