Opinion
17325.
FEBRUARY 12, 1951.
Petition for injunction. Before Judge Andrews. Fulton Superior Court. October 3, 1950.
McLennan Cook, for plaintiff.
John L. Westmoreland, John L. Westmoreland Jr., and J. Ralph McClelland Jr., for defendants.
"The power of appointing receivers should be prudently and cautiously exercised, and except in clear and urgent cases should not be resorted to." Code, § 55-303. "Creditors without lien may not, as a general rule, enjoin their debtors from disposing of property, nor obtain injunction or other extraordinary relief in equity." § 55-106. While there are exceptions to this rule where extraordinary circumstances are involved ( Cohen Co. v. Morris Co., 70 Ga. 313 (2); Elliot v. Macauley, 177 Ga. 96 (2), 169 S.E. 358; Belcher v. O'Shields, 150 Ga. 298, 103 S.E. 492; Geele v. Willis, 203 Ga. 267, 46 S.E.2d 126; and many cases cited and explained in Irwin v. Willis, 202 Ga. 463 (2), 480, 43 S.E.2d 691), yet the allegations in the instant case do not set forth such extraordinary circumstances as would take the case out of the general rule, and the trial judge did not err in sustaining a general demurrer to the petition.
Judgment affirmed. All the Justices concur.
No. 17325. FEBRUARY 12, 1951.
Mrs. Henry Oattis filed, against West View Corporation, and Asa G. Candler Jr., a petition which as amended alleges substantially the following: West View Corporation owns and operates a cemetery and has sold lots therein to various parties. The petitioner filed a suit in Fulton Superior Court against both defendants for damages, alleging desecration of her cemetery lot, and upon the trial was awarded $40,300 by the jury, which verdict was set aside by the court on the sole ground that it was excessive; and the verdict having been set aside on the sole ground of being excessive, the petitioner's claim for damages in the instant case is therefore one of prima facie liability. The instant suit is ancillary to the damage suit. There are twelve suits in Fulton Superior Court by various plaintiffs, for desecration of graves in the same cemetery, against these defendants for a total amount of $356,500; and prima facie liability in each case has been established by the verdict obtained by this petitioner, which was subsequently set aside for reasons stated. That each of the twelve suits has a value of $20,000.
It is further alleged: that West View Corporation owns the Robert Fulton Hotel, the Briarcliff Hotel, and the Clermont Hotel in Atlanta, Georgia, with a large outstanding mortgage against each; that West View Corporation is wholly owned by Asa G. Candler Jr. and his family; that they own all the stock and constitute the entire board of directors; that the entire corporation, stockholders, and board of directors are controlled and dominated entirely by Asa G. Candler Jr., and all acts and transactions of the corporation are in fact the acts of Asa G. Candler Jr.; that funds received by the corporation from any transfer of its property will subsequently be the funds of Asa G. Candler Jr.; that the Robert Fulton Hotel has a value of $1,500,000 and is mortgaged for $600,000, and the defendant Candler, acting for himself and the defendant corporation, has agreed to sell the hotel to Fred Wilson for $850,000 and, if so, Candler will receive $100,000 after the payment of described expenses incident to the sale; that Fred Wilson is cognizant of the suits for damages against the defendants; that the proposed sale of the Robert Fulton Hotel is fraudulent, and the said Fred Wilson is an accomplice of Candler in his attempt to defraud petitioner and others similarly situated; that defendant Candler is over seventy years of age, in bad health, and if the sale is consummated, intends to give the proceeds to his children and render both defendants insolvent; and that the defendants have agreed, conspired, and planned to sell the Briarcliff Hotel and Clermont Hotel, listed them with real estate agents, and it is Candler's purpose to give the proceeds from the sale to his family, which when so done, will render defendant Candler insolvent. It is also alleged: that Candler, as president of the corporation, and the other officers are jointly and severally attempting to sell, convey, and give away all their property; and that it is the purpose of Candler, acting for himself and the corporation, to sell off the property of the corporation, and thus make both defendants insolvent; and that Candler, acting for himself and for the defendant corporation, has conspired with members of his family to transfer and give to them the proceeds from the sale of the hotels in order to defraud the petitioner and others similarly situated.
There is a prayer, among others, for a temporary and permanent injunction against transferring the property and for a receiver. Demurrers, both general and special, were filed. The trial judge sustained the general demurrer. Special demurrers were not passed on. To the order sustaining the general demurrer exceptions were filed.