Estes v. Callahan , 164 Ga. 744 ( 1927 )

Bussell, C. J.

As appears from the record, Callahan owned a house and lot in the City of Atlanta, on which he obtained a loan of $2000 from the City Savings Bank. He sold this house-to one Abercrombie, subject to this loan, and Abercrombie in turn sold it to Mrs. Estes, the plaintiff in error, subject to the loan in favor of the City Savings Bank as well as the purchase-money 'notes given by Abercrombie to Callahan, amounting to $1300. The City Savings Bank sued Callahan on the loan, and obtained judgment. Callahan sued Abercrombie for the balance on his purchase-money notes, and obtained judgment. The fi. fa. in favor of the City Savings Bank was levied upon the house then in the possession of Mrs. Estes, and she interposed a claim. Upon the trial of the claim case the property was found subject to the fi. fa. in favor of the City Savings Bank, and by bill of exceptions the case was presented to the Supreme Court. Estes v. City Savings Bank, 164 Ga. 573 (139 S. E. 13). In the process of the litigation just referred to, an application by the City Savings Bank for the appointment of a receiver to take charge of and collect the rents from the house which had been purchased by the claimant was refused. The property was advertised to be sold on the first Tuesday in January, 1926, and the claim of Mrs. Estes was filed the day preceding that fixed for the sale. After the writ of error in the preceding case had been certified by the presiding judge, Hon. John D. Humphries, on July 3, 1923, and on August 13, 1926, as appears from the bill of exceptions in this case, as certified by Hon. E. D. Thomas, the same cause was taken up for trial upon an intervention filed by Callahan, in which he alleged that he was the owner of a judgment against Abercrombie, based upon an indebtedness payment of which had been assumed by Mrs. Estes, and setting up that Mrs. Estes was in possession of the property without paying any rent;-.that the property was subject to the debt ■of the City Savings Bank, and would probably bring enough at the sale to pay the indebtedness due the bank; but asking that a receiver be appointed-to take possession of the house and collect and hold the rents until the conclusion of the litigation, for-his protection. The lower court passed an order that a receiver be .appointed in ease the defendant did not give bond for the eventual condemnation-money) and exception is taken to this judgment.

We are of the opinion that the court erred in the appointment of a receiver. Regardless of the fact that the judge, did not pass upon the demurrer interposed to the petition when the same was read, but proceeded, on the contrary, to require the introduction of evidence as to the facts stated in the petition for a receiver, the objections of the plaintiff in error to the hearing, based upon the ground that the case was pending in the Supreme Court, should have been sustained. The case pending before the court (even after the order consolidating case No. 66800 and case No. 66843) was nothing but an ordinary claim case in which the parties were the City Savings Bank as plaintiff in fi. fa. and Mrs. Texas L. Estes as claimant, and the petition for receiver, which is entitled in the record as City Savings Bank v. Mrs. T. L. Estes. Callahan was not a material party in either case, for the reason that the sole issue in a claim case is whether the property levied upon is the property of the claimant or is subject to the ii. fa. of the plaintiff in ñ. fa. as the property of the defendant in ii. fa. One of the points made in the demurrer of the plaintiff in error in this case, setting forth that the petition hied by the defendant in 11. fa. set forth no cause of action, is based upon this principle; and we think the ground of demurrer was well taken. The answer of the defendant in h. Ifa., Callahan, admitted his liability to the judgment upon which the levy was proceeding. In our opinion the entire petition was irrelevant to the issue in tire claim case, and afforded no reason for the appointment of a receiver.

But should we be mistaken as to this, the court should not have entertained or passed upon the intervention or have appointed a receiver on August 13, 1926, after the consolidated cases had been transmitted to this court for adjudication on the bill of exceptions certified by Hon. John D. Humphries on July 3. Courts of review have never been inclined to favor the practice of trying-cases by piecemeal and in dissevered fragments, and for that reason it has been uniformly held that when “the bill of exceptions is certified by the trial judge, the case is no longer pending in his court, and he is wholly without authority to pass any order or do any act with reference to the same.” Georgia etc. R. Co. v. Lasseter, 122 Ga. 679, 684 (51 S. E. 15). “As a general rule, when an appeal or writ of error is perfected the case becomes one for the cognizance of the appellate court, and for that court alone; the authority of the lower court is terminated, and it can not proceed in the cause, at least as to the subject-matter of the appeal or writ, until the appeal or writ of error is heard and determined.” 3 C. J. 1255, § 1369; Michigan Ins. Bank v. Eldred, 143 U. S. 293 (12 Sup. Ct. 450, 36 L. ed. 162). The trial of the application for a receiver was particularly inappropriate in.the present, case,.because it was an attempt to engraft rights of Callahan upon a proceeding which concerned only the City Savings Bank, and • to use the levy of the fi. fa. in favor of the City Savings Bank, when it does not appear from the record, and certainly not in the petition of Callahan, that there has ever been any levy of the fi. fa. obtained by Callahan against Abercrombie. 0

Judgment reversed.

All the Justices concur, except Gilbert and Hines, JJ., who dissent.