Pennington v. Macon County Bank

Supreme Court of Georgia1923-11-17No. No. 3634

156 Ga. 767

Summary · law.co

Holding. An order declining to dissolve an interlocutory injunction and refusing to vacate a receiver's appointment does not constitute a final judgment that permits appeal by writ of error, because material issues regarding permanent injunctive relief and final judgment on the merits remain pending in the trial court. The writ of error was dismissed.

A bank sought equitable relief against a debtor who had been adjudicated bankrupt, requesting that the debtor be enjoined from transferring homestead property and proceeds, and that a receiver be appointed to manage those assets. The trial court granted an interlocutory injunction and appointed a receiver but did not render a final judgment on whether a permanent injunction and receiver should remain in place or whether the bank should prevail on its underlying monetary claims.

The debtor filed a petition seeking to dissolve the injunction and vacate the receiver's appointment. The trial court declined to dissolve or vacate these orders, leaving unresolved the core issues regarding permanent relief and final judgment on the bank's claim. Because the trial court's order was interlocutory rather than final, addressing only whether temporary remedies should continue, the court determined that appellate review was premature.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Finality requirement for appellate review by writ of error
Distinction between interlocutory and final orders
Homestead rights and bankruptcy proceedings
Equitable remedies and receiver appointments

Procedural posture

The debtor sought to appeal by writ of error an order of the trial court that refused to dissolve an interlocutory injunction and vacate a receiver's appointment in an equitable action brought by the bank.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Hill, J.

“ No cause shall be carried to the Supreme Court upon any bill of exceptions, so long as the same is pending in the court below, unless the decision or judgment complained of, if it had been rendered as claimed by the plaintiff in error, would have been a final disposition of the cause, or final as to some material party thereto.” Civil Code (1910), § 6138.

2. Consequently, where a petition was filed by a bank against one named as defendant, alleging that the defendant was indebted to the bank in a certain sum and that the defendant had been adjudicated a voluntary bankrupt in the district court of the United States, and that the defendant is claiming a homestead of $1600, $2d0 of which is in personal property and the balance of $1320 in cash, which was derived from the sale of the bankrupt’s equity in certain real estate, and which sum was alleged to be in the hands of the trustee; and where the referee had set the hearing of this homestead claim for a certain time at which, if no objections were filed, the property and money referred to above would be turned over to the defendant; and where it was alleged that the defendant was insolvent, and, he having been adjudicated a bankrupt, the bank could not bring a common-law action against him on certain notes described in the petition, and its only remedy was in a court of equity, and it prayed that the defendant be restrained and enjoined from transferring, alienating, or disposing of the homestead property or the proceeds thereof, and that a receiver be appointed to take charge of and hold the property, or to receive the same from the trustee ±n bankruptcy when the same has been finally allowed as a homestead by the bankruptcy court; and where there was a prayer for a judgment in rem against the property set aside and allowed as a homestead, for the account of its debts, as against which the homestead rights were waived; and where it appears that a receiver was appointed and an interlocutory injunction granted as prayed; and where subsequently in the present ease an equitable petition was filed by the defendant against the bank, praying that the previous order appointing a receiver and granting the injunction should be dissolved, and the court, after hearing the case, passed an order declining to dissolve the injunction or to vacate the order appointing the receiver: such order did not finally dispose of the case, but left the issue as’ to whether a permanent receiver should be appointed and a permanent injunction should be granted, and a verdict and judgment should be rendered against the defendant for the amount prayed for, still pending and undisposed of in the court below; and therefore, no final judgment appearing in the record and none being specified in the bill of exceptions, the writ of error was prematurely brought to this court, and on motion made the same must be and is dismissed. See Stubbs v. McConnell, 119 Ga. 21 (45 S. E. 710) ; Bacon v. Capital City Bank, 105 Ga. 700 (31 S. E. 588); Smith v. Willis, 107 Ga. 792 (33 S. E. 667); Young v. Harris, 146 Ga. 338 (91 S. E. 39); Durkin v. Hewlett, 148 Ga. 635 (97 S. E. 640).

No. 3634.

November 17, 1923.

Motion to dissolve injunction etc. Before Judge Littlejohn. Macon superior court. January 22, 1923.

John B. Guerry and Benj. F. Neal, for plaintiff in error.

John M. Greer and Gilbert G. Robinson, contra.

Writ of error dismissed.

All the .Justices concur.