Opinion
14310.
NOVEMBER 12, 1942.
Equitable petition. Before Judge Paul S. Etheridge. Fulton superior court. July 3, 1942.
Mitchell Mitchell, for plaintiffs in error.
Noah J. Stone, contra.
1. The writ of error brought from an order overruling the defendants' motion to dismiss the action is not subject to the motion in this court to dismiss, on the ground that the other defendant was not made a party to or served with the bill of exceptions; or on the ground that there was no legal service or acknowledgment of service of the bill of exceptions.
2. Under the exceptions taken, no question is presented except whether the petition was good against the motion to dismiss, in the nature of a general demurrer.
3. The petition by a creditor for injunction, receiver, and other relief, on account of alleged fraudulent transfers by the debtor to his wife, stated a cause of action as against the motion to dismiss, since there were sufficient averments to render the petition good in part, and there was no special demurrer.
No. 14310. NOVEMBER 12, 1942.
The question raised by the bill of exceptions, brought by two of the defendants in the trial court, is whether it was error to deny their oral motion to dismiss the action on the ground that the petition for injunction, receiver, money judgments, and other relief stated no "cause of action," or "facts on which a receiver should be appointed, nor a judgment rendered against the defendants."
The essential averments of the amended petition of United Food Brokers Inc. against G. T. Edwards, its debtor, Mrs. Irene Edwards, his wife, and Roy R. Cooper, his bookkeeper, are as follows: that G. T. Edwards, who did business as Edwards Candy Company, owes the plaintiff $926.81 and interest on a note, and $460.52 on an open account; and plaintiff sues for itself and "all creditors who are similarly situated;" that Mrs. Edwards, the debtor's wife, "operates a business in Atlanta . . under the trade-name of Sunshine Peanut Butter Company;" that Cooper, the bookkeeper for Edwards while doing business under Edwards' trade-name, is now the bookkeeper for Mrs. Edwards doing business under her trade-name; that before February 1, 1941, Edwards operated a candy and confection plant at 746 DeKalb Avenue in Atlanta, sold products in several states, owned a fleet of automobiles, which he furnished to his traveling salesmen, and was collecting $750 to $1,000 a week; but "about February 1, 1941, the United States Government under the pure food and drug act enjoined . . Edwards from making his products at his place of business and selling the same to the general public."
It was further alleged, that on February 18, 1941, the present petitioning creditor had filed another suit in the same court, based on the same note and account; that in this previous suit a receiver was appointed for Edwards, trading as Edwards Candy Company, and for his assets; that no service could be made on Edwards in the previous suit, because he was on a "protracted drunk and . . eluded the officers;" that on June 13, 1942, the plaintiff amended the previous petition by praying for a receiver for both Edwards and his wife, "trading as Sunshine Peanut Butter Company;" but in June, 1942, at the time of filing the present suit, the plaintiff dismissed the previous suit, because Edwards had "so successfully eluded the officers" that "he could not be served with process, rule nisi, and ne exeat."
As to the acts of the respective defendants, the petition set forth that "the purchase-price of Sunshine Peanut Butter Company was paid by [Edwards] out of funds belonging to him in his tradename as Edwards Candy Company, and which in equity should have been applied to the payment of petitioner and other creditors," the date of this purchase not being alleged; that "about the time [Edwards] through [Mrs. Edwards] and in carrying out said conspiracy purchased the Sunshine Peanut Butter Company as alleged, he directed the United States post-office to desist from sending mail directed to Edwards Candy Company, the larger part of which was remittances from various salesmen by him employed, to the office of the . . Candy Company at 746 DeKalb Avenue, but instructed that all mail be delivered to a lock-box in a sub-post-office station located on McLendon Avenue in the City of Atlanta;" and that this conduct was "a part and parcel of the scheme conspired in between" Edwards, Mrs. Edwards, and Cooper, their bookkeeper, to hinder, delay, and defraud Edwards' creditors, and to unlawfully prevent the previous receiver from obtaining possession of Edwards' assets.
As to the previous but later dismissed suit, it was alleged that a receiver had been appointed for Edwards trading as Edwards Candy Company, and for his assets. In that connection, the present petition stated that "while said business was in the hands of the receiver . . the defendants [Mrs. Edwards and Cooper], as a result of a conspiracy between the three [defendants], and in deliberate contempt of this court, and to deprive the receiver of collecting assets belonging to [Edwards] trading as Edwards Candy Company, and thereby intending to defraud your petitioner and other creditors of [Edwards], proceeded to remove from the office of [Edwards] trading as Edwards Candy Company all books, records, papers, and documents showing the persons to whom merchandise had been sold, the amounts of moneys due and becoming due thereafter, and all records of possession of property in the hands of agents of [Edwards] trading as Edwards Candy Company, and property in the hands of his employees, and particularly automobiles owned by him, and all of which the receiver was entitled to for the benefit of creditors of [Edwards] trading as Edwards Candy Company;" that "thereafter . . the said [Mrs. Edwards] assisted by [Cooper, the bookkeeper], in carrying out said conspiracy, proceeded to secure control of various sums of money from salesmen employed by [Edwards] trading as Edwards Candy Company, and to appropriate the same to her own use the assets and funds, against this court's receiver and in contempt of this court;" and that, "to effectuate said conspiracy, the good will and list of customers and Edwards Candy Company [were] taken over by said [Mrs. Edwards], and to this day [she] in her tradename as Sunshine Peanut Butter Company is continuing to sell merchandise to the former trade of [Edwards] trading as Edwards Candy Company, although the receiver appointed by this court is entitled to recover the proceeds from such sales and conduct the former business of [Edwards] trading as Edwards Candy Company, for the benefit of creditors, in the event the court deems such to be to the best interest of all concerned." As to insolvency, it was alleged that Edwards at the time of the first suit was and now is insolvent; and that Mrs. Edwards was and is insolvent "when assets so unlawfully taken from [Edwards] trading as Edwards Candy Company, and belonging to the receiver of this court, are ordered turned over to the receiver for distribution to creditors of Edwards Candy Company."
As to a receivership, the petition states that a receiver is necessary, not only for the assets of Edwards, but for those of Mrs. Edwards and the Sunshine Peanut Butter Company, under which name she was doing business, because, unless a receiver is appointed, "all books, papers, and records will be removed so that it will be impossible to ascertain the various manipulations growing out of the unlawful conspiracy as herein alleged;" and that, "if properly operated, and all collections received properly accounted for, Sunshine Peanut Butter Company can be made to pay to [Edwards] trading as Edwards Candy Company all moneys illegally appropriated in the manner hereinbefore alleged, and thereupon [Mrs. Edwards] trading as Sunshine Peanut Butter Company will be insolvent."
There was an additional averment that Cooper, the bookkeeper, is "indebted to petitioner in the sum sued for, and is indebted to all creditors of [Edwards] trading as Edwards Candy Company and Mrs. Irene Edwards trading as Sunshine Peanut Butter Company, for all moneys owed by [Edwards] trading as Edwards Candy Company," because of "his participation in the fraud and conspiracy alleged." The petition also assigns reasons why the case should be tried before an auditor instead of a court and jury.
The prayers are, for "judgment against the three defendants named, for the several amounts sued for;" and for immediate appointment of a receiver "for the assets of [Edwards] trading as Edwards Candy Company, and [Mrs. Edwards] individually and trading as Sunshine Peanut Butter Company," with direction "to continue the operation of the business known as Edwards Candy Company and Sunshine Peanut Butter Company for the benefit of all creditors;" and direction "to take charge of all books and records of the several defendants and remove the same from the premises of [Edwards] trading as Edwards Candy Company and Sunshine Peanut Butter Company, so that the same may be protected;" that "all defendants be restrained and enjoined from changing the books or records of either of the defendants;" that "all other creditors similarly situated be allowed to intervene;" and that "petitioner have such other relief as may be meet and proper."
The affidavit verifying the allegations of the petition was executed by the affiant with a recital that he was "agent for the" named petitioner.
1. Two of the defendants made a motion, in the nature of a general demurrer, to dismiss the action, and they excepted to the denial of this motion.
( a) There is no merit in the motion in this court to dismiss their writ of error on the ground that the third defendant in the trial court was not made a party to the bill of exceptions. "Where a petition is filed against several defendants, and a separate demurrer thereto by one or more of them is overruled, the remaining defendants need not be made parties to, or be served with a copy of, a bill of exceptions assigning as error the overruling of the demurrer mentioned." Huey v. National Bank of Fitzgerald, 177 Ga. 64, 67 ( 169 S.E. 491), and cit.
( b) As to the second ground of the motion to dismiss the writ of error, as showing no legal service or acknowledgment of service, there is an entry on the bill of exceptions itself, with a return by a deputy sheriff of the county where the case is pending, that he served the named defendant corporation by serving its named "manager" by "leaving a copy of the within writ and process with him at the office and place of doing business of said corporation," in said county. Under the Code, § 6-911, as to service of a bill of exceptions on the opposite party or his attorney or an acknowledgment of service, such service may be effected by the sheriff of the county where the case was tried or his deputy, and his return entered on the original bill of exceptions will be sufficient evidence of service. Head v. Bridges, 72 Ga. 30, and cit.; Elrod v. Black, 148 Ga. 194 ( 96 S.E. 180). The return of service on the corporation by serving its manager was sufficient. Code, § 22-1101. Even if any additional showing were necessary as to the person served being an "agent" of the corporation, service upon whom would bind the corporation, it appears from its pleadings that he verified them in its behalf as its "agent." The reference in the return on the bill of exceptions itself as to the service of a copy of the "within writ and process" will be construed as referring to the bill of exceptions, since the return was entered thereon; and since a bill of exceptions, duly tendered to the judge, with a proper certificate, operates as the only required writ of error; and since the term "process" is sufficiently broad to include a bill of exceptions or writ of error. See, in this connection, Code, § 6-1101; Masland v. Kemp, 70 Ga. 786 (6); Savage v. Oliver, 110 Ga. 636, 639 ( 36 S.E. 54).
2. On the sworn petition of a creditor against a debtor, his wife, and his bookkeeper, attacking alleged fraudulent transfers by the debtor to his wife, the judge, acting on the sworn petition, though without notice to the defendants, granted a restraining order and a temporary receiver, and set the case down for hearing ten days later. At this interlocutory hearing he overruled the motion to dismiss the petition, in the nature of a general demurrer, and a motion to dissolve the receivership, and in the same judgment ordered that the receivership continue until the further order of the court. There is no exception to that portion of the order continuing the receivership, or to any restraining order or injunction; and the exceptions of the plaintiffs in error are limited to the overruling of the motion to dismiss the petitions, as provided in the judgment on the interlocutory hearing, and to the previous order appointing a temporary receiver ex parte. Accordingly, since the continuance of the receivership at the interlocutory hearing, which in effect granted a receiver ( Ramsey v. Ramsey, 175 Ga. 685, 688, 165 S.E. 624), rendered moot the question sought to be raised as to the grant of a receiver ex parte in the previous order ( Grizzel v. Grizzel, 188 Ga. 418, 422, 3 S.E.2d 649), no question is presented by the bill of exceptions for determination, except as to the sufficiency of the petition against the motion to dismiss.
3. Under the Code, § 28-201, where a debtor makes a fraudulent transfer of property or choses in action, which is voidable as to creditors, the property in the hands of the fraudulent grantee is held by him in trust for the creditors of the fraudulent grantor; and if the property has been converted into money, the money is impressed with the same trust, and the fraudulent grantee will be compelled in equity to account for the same. Beasley v. Smith, 144 Ga. 377 (3), 380 ( 87 S.E. 293); Young v. Wilson, 183 Ga. 59, 69 ( 187 S.E. 44), and cit. Every voluntary deed or conveyance, made by a debtor insolvent at the time of its execution, being thus invalid (Code, § 28-201 (3); Moncrief Furnace Co. v. Northwest Atlanta Bank, 193 Ga. 440, 19 S.E.2d 155), and an insolvent person being precluded from making a valid gift to the injury of his existing creditors (Code, § 48-110), such a transaction may be set aside, and the assets thus transferred subjected to debts existing at the time of the transfer, or to subsequent debts if there was an intent to defraud as to them. Lane v. Newton, 140 Ga. 415 (2), 420 ( 78 S.E. 1082); First National Bank of Cartersville v. Bayless, 96 Ga. 684 ( 23 S.E. 851); State Banking Co. v. Miller, 185 Ga. 653 (7), 656 ( 196 S.E. 47).
( a) "When a transaction between husband and wife shall be attacked for fraud by the creditors of either, the onus shall be on the husband and wife to show that the transaction was fair" (Code, § 53-505), so that it shall be made to appear that the transaction as a whole was free from fraud, and the bona fides must be clearly established. Parker v. Harling, 189 Ga. 224 (2, a) ( 5 S.E.2d 755), and cit.; State Banking Co. v. Miller, supra; Dwight v. Acme Lumber Supply Co., 189 Ga. 473 (3, a), 475, 477 ( 6 S.E.2d 586).
( b) Even though, for the reasons stated, the exceptions present no question as to the right of the judge to grant a temporary receiver at the interlocutory hearing, or to do so ex parte when the petition was filed, the question as to the right to such a receivership under the pleading is raised by the attack on the petition, made in the motion to dismiss, on the ground that the petition did not state sufficient facts to authorize the appointment of a receiver. The appointment of receivers, like the granting and continuing of injunctions, should be "prudently and cautiously exercised, and except in clear and urgent cases should not be resorted to" (Code, §§ 55-108, 55-303); but such matters "always rest in the sound discretion of the judge, according to the circumstances of each case" (§ 55-108); and "Equity may appoint a receiver to take possession of, and hold subject to the direction of the court, any assets charged with the payment of debts, where there is manifest danger of loss, or destruction, or material injury to those interested. Under extraordinary circumstances, a receiver may be appointed before and without notice to the trustee or other person having charge of the assets" (§ 55-305). Dixon v. Tucker, 167 Ga. 783, 784 ( 146 S.E. 736); Crockett v. Wilson, 184 Ga. 539, 542 ( 192 S.E. 19). Thus, if the danger of dissipating assets before an interlocutory hearing can be had is great, the court in the exercise of a sound discretion may, without notice, grant a temporary restraining order or appoint a temporary receiver in order to preserve the status until the interlocutory hearing. Young v. Hamilton, 135 Ga. 339, 345 ( 69 S.E. 593, 31 L.R.A. (N.S.) 1057, Ann. Cas. 1912A, 144); Jones v. Dougherty, 10 Ga. 273 (2), 281; Williams v. Jenkins, 11 Ga. 595; Johns v. Johns, 23 Ga. 31 (3), 36. Did the petition allege a cause of action as to a temporary receivership or other relief sought, under the averments and the preceding rulings?
(c) "An equitable petition is not subject to dismissal on general demurrer, if it states a cause of action as to any equitable or legal relief prayed." Greene v. Kelly, 193 Ga. 675, 679 ( 19 S.E.2d 718), and cit. Under this rule, the preceding holdings, and the facts alleged, the petition stated a cause of action, good at least in part as to the relief prayed, and therefore was not subject to the motion to dismiss in the nature of a general demurrer. A cause of action was stated for setting aside of the alleged fraudulent transfers from the debtor husband to his wife, for grant of a restraining order and injunction, for the appointment of a receiver, accounting and judgment against the debtor for the amount due to the plaintiff creditor. Under the allegations as to a commingling of assets transferred by the husband to the wife, with other assets derived by the wife from continuing the husband's business, and the alleged insolvency of both parties, a cause of action for the preservation of such assets by a receivership was shown. In the absence of any special demurrer, the fact that some of the relief prayed might not be grantable under the averments, such as personal judgments against the wife and the debtor's bookkeeper for the husband's debt, would not render the petition subject to the motion to dismiss.
Judgment affirmed. All the Justices concur.