Barrett v. Maynard

Hill, J. (After stating the foregoing facts.) 1. Under the faqts disclosed by the record the court did not err in appointing a receiver to. take charge of the property in controversy, with direction to rent the same, collect the rent, and hold it subject to the further order of the court. The argument of the plaintiff in error is that the court erred in granting what he terms a mandatory injunction, and he cites numerous authorities from the decisions of this court to sustain the proposition that a mandatory injunction cannot be granted in this State. It is a sufficient answer to this argument to say that by reference to the decree of the court it will be observed that the court did not grant an injunction, but merely appointed a receiver to take charge of the property as above set forth. Roberts v. Mullinder, 94 Ga. 493 (20 S. B. 350), was a case somewhat similar in its facts to the present one. In that case a common-law judgment was obtained against one Smith and levied upon the land in controversy, to which the claimant, Mrs. Roberts, interposed her claim to the land in forma pauperis, without giving bond and security. An equitable petition was filed in that case, alleging that the claimant was insolvent, and that the claim was interposed not in good faith but for delay and for the purpose of hindering and delaying the collection of the judgment, and to enable Mrs. Roberts to cultivate, rent, and use the land for her own benefit; that she had no legal or equitable interest in the land, and was insolvent; that the land was poor, badly worn, and was decreasing in value, [85] and the improvements on it were not being kept up; and that the defendant, Smith, had no interest or ownership in any other property, and was insolvent when he died. The court, in that ease, ordered that the defendant in the equitable proceeding give a bond for $1500, payable to the plaintiff, conditioned to pay such damages as the jury on the trial of the claim case should assess; and in default thereof that a receiver be appointed, and that . an injunction be granted as prayed. The defendant excepted, and the Supreme Court affirmed the judgment of the' court below. To the same effect see Smith v. Zachry, 128 Ga. 290 (57 S. E. 513). In delivering the opinion of the court in that case Mr. Justice Lumpkin said: “If the allegations of the petition are to be taken as true, the sole purpose of the defendant and his wife in these repeated interpositions of claims and affidavits of illegality is to delay the proper enforcement of the law. If this be so, the law will not allow such a purpose to be effectuated; nor will equity turn a deaf ear and stand idly by and permit the defendant to reap the reward of such a scheme of delay, while the creditor not only is prevented from realizing the money’ justly due him, but also sees the land depreciating in value below the amount of the executions. There must be an end of litigation somewhere; and we think the presiding judge.did nothing more than his manifest duty when he appointed a receiver to hold the land and collect the rents pending the exception to the judgment on the last affidavit of illegality. Hart v. Respess, 89 Ga. 87 (14 S. E. 910); Roberts v. Mullinder, 94 Ga. 493 (20 S. E. 350); Dawson v. Equitable Mortgage Co., 109 Ga. 389 (34 S. E. 668); Powell v. Achey, 87 Ga. 8 (13 S. E. 108).” 2. It is argued that the present suit will not lie, because it involves the same transaction involved in the eviction proceeding, which is pending in the Court of Appeals; but we do not agree with this contention. We think that the issues are entirely different. This action is an equitable one in aid of the other, in which the plaintiff seems to have no adequate remedy at law. If the defendant is insolvent, as held by the trial judge, then, unless a court of equity interferes in an ancillary proceeding, as an aid to the legal proceeding, by appointing a receiver to collect and impound the rents due on the premises, the plaintiff is remediless. [86] For these reasons, and under the authorities cited above, we think the court did right in appointing a receiver as prayed. Judgment affirmed. All the Justices concur.