Crawford v. Ross

1. The revocation of an order appointing a Beceiver is a matter which may be heard and acted upon by the Judge, on the usual notice, in vacation. 2. The extraordinary writs and remedies granted by the Chancellor, before a trial on the merits, ought not to be granted without caution, and unless there is immediate danger to the rights of the complainant, if they be denied, and if the Court becomes satisfied that the danger does not exist, it is his duty, on proper notice, to discharge them. 3. In this case, the Court did not err in dissolving the injunction and vacating the order appointing a Beceiver. i. It is the duty of the Judge, if he is satisfied there is a bona fide intention to except to his judgment, so to mould his order as that the excepting party may have a reasonable time to file his bill of exceptions and obtain a supereedeas before the status of the case can be materially changed.

Equity practice. Receivers. Injunctions. Supersedeas. Decided by Judge Clark. Lee county. Chambers. January, 1869. Shadrack T. Crawford, in his own behalf, and as prochien ami of Charles Roberts, a minor, A. J. Williams and James McGarrah, filed their bill in equity against E. H. Ross and his wife, making the following averments : On the 17th of September, 1864, said E. H. Ross was appointed guardian of said minor, and gave his bond, as such guardian, with said adult complainants as his securities thereon. Ross, as guardian, took possession of the money and effects of the minor, and invested them in three hundred and twenty-five acres of land, in the seventeenth district of Sumter county, worth $1,000 00, taking the title to himself. Said guardian rented said land to James W. Ross, for one-fourth of the cotton and one-third of the grain to be raised thereon, during 1868. He has received ten bales of cotton, worth $1,100, and shipped-them to Jones, Reynolds & Adams, Macon, Georgia. This guardian owes the minor $2,800 00, for cash received for him, as his ward. He is insolvent, and has been, by the Ordinary, discharged from his guardianship, because of mismanagement of the minor’s estate. They claimed that, in equity, said land and cotton belong to the minor. Therefore, they prayed t-hat the guardian be compelled to convey the land to the minor, and to deliver him the cotton, and that he be enjoined from disposing of either. And as these securities are liable for said waste, they prayed that a Receiver should be appointed, who should take possession of the land and cotton, and other effects of the minor, etc. The Chancellor granted the injunction and appointed a Receiver, who took possession of said property. The bill was amended by adding the following averments: On the 8th February, 1868, said guardian gave to two of said adult complainants, a mortgage to indemnify them as his said securities, and to protect said minor. Said mortgage including a note on James F. Ross, dated and due on the 25th of December, 1867, for $511 97, and another on J. D. Cos for $50 00, due 25th December, 1868, and his said interest in the cotton and corn raised on said farm, specified as follows : “ The same being one-fourth of the cotton and one-third of all the grain to be raised on the plantation of the said James F. and E. PI. Ross, in the county first aforesaid, to be raised in the year 1868.” Said rent amounted to twelve bales of cotton, ten of which Adams, Jones & Reynolds, warehousemen of Macon, Georgia, have, and the other two are in the warehouse of Harrold, Johnson & Co., Arnericus, Georgia, and 500 bushels of corn are still on the plantation. It was understood, when the mortgage was made, that said rent should be subject to the claim of said adult complainants, and be held by James F. Ross, and it should be applied to the payment of the minor’s claim. The guardian had shipped this cotton, to dispose of it, and convert the assets to his own use, before they had opportunity to foreclose the mortgage, or take other steps to secure themselves. James F. Ross refused to deliver a part of said corn when they ordered him to do so. Said guardian, with a view to defeat his creditors, iifl868, conveyed his residence inSmitliville, Georgia, worth $2,000 00, to his wife, and he has given liens on said crop. They prayed, additionally, that James F. Ross and Mrs. Elizabeth Ross be enjoined from disposing of any of said property held by them respectively, and that the Receiver should take charge of said notes and the half interest in said plantation, etc. The defendant, E. H. Ross, demurred to the bill and amendment, for want of proper parties, and for a misjoinder of parties; “ for that said ward being above the age of fourteen years, comes into Court and selects the defendant as his guardean, ad litem and proahien ami” and the defendant tenders such bond as the Court would require, and because the adult complainants are only securities, and can have no relief in a Court of Equity.” At the same time, he filed his answer, stating that he received $32,623 50, Confederate currency, for the minor, on the 17th of September, 1864, and invested it in oné-half of said land, and took the title to himself, as guardian of said ward, and afterwards, in March, 1866, he bought the other half of the plantation for himself. He said he tried to get an order of Court for this investment; but not being able to communicate with the Judge of the Superior Court, be made the investment without order, upon the advice of the Ordinary. He paid for this half interest for the minor, 10th of August, 1865, $35,000 00, of which $19,026 57 was the minor’s, and the balance was his own. The minor’s slaves were emancipated. He filed, with his answer, a copy of his returns, as such guardian, admitted that there was a balance of $789 15, against him, and that said half interest in the land and in said crop, was the minor’s. He denied positively the charges of fraud, mismanagement and insolvency. Upon the filing of this demurrer and answer, E. H. Eoss moved to dissolve said injunction, and to vacate the order appointing the Eeceiver. Pending argument, complainant’s solicitors moved to appoint a guardian ad litem, for said minor. The Court refused to do-so. He discharged the Eeceiver, and ordered the property delivered back to E. H. Eoss, and ordered the injunction to be dissolved, upon E. H. Eoss filing a bond of $1,000 00, to indemnify the complainants, and to perform the decree in this cause, and ordered that $100 00 be paid to defendant’s solicitors, defendant consenting to it. Complainant’s solicitors asked the Chancellor to pass an order superceding his judgment till it could-be reviewed here, but he refused to do so. Thereupon, complainant’s solicitors assigned as error the refusal to appoint the guardian ad litem, the removal of the Eeceiver, the redelivering of the property, and the dissolution of the injunction, his order as to counsel fees, and the refusal of the supercedeas.