Jones, Drumright & Co. v. Thacker & Co. , 61 Ga. 329 ( 1878 )

Bartlett, Judge.

1. There was no error committed by the court below in overruling complainants’ demurrer to the cross-bill of defendants, and in refusing to dismiss the same. There was equity in the cross-bill; the court having obtained jurisdiction of all the parties, and subject matter, should not have compelled the defendants in the bill to resort to other proceedings to accomplish the same purpose, when it could then, and in the case then before it, finally settle the rights of all the parties. The complainants certainly should not complain that the court of equity was not the proper forum, since it was the one of their own selection, and-they had first brought' the defendants within its jurisdiction. We see no reason why the defendants could hot recover the -purchase money for the shares purchased at the sheriff’s sale ; they were the real parties at interest, an'd the 'sheriff would have been a mere nominal or formal'pariy. See Code of- 1873, section 3656. The defendants had assumed the character of complainants; were seeking to have a decree and judgment against Jones, Drumright & Co.; the allegations in their cross-bill contained an equitable cause of -action against the complainants, and they were entitled to have their cause proceed, heard and determined, on thé issues as madé -by the pleadings in the case. 5 Ga., 400.

2. Nor did the court err in refusing the motion to dismiss the original bill of complaint, and with it the answer filed in the nature of a cross-bill. The court proposed to allow complainants to dismiss tbeir bill, but refused to dismiss the cross-bill. There can be no doubt that the court was right in this ruling. The complainants could, at any time, either in term time or vacation, dismiss their bill, so they did not thereby prejudice any right of the defendants. Code of 1873, section á-190. The object of the complainants was not so much to dismiss their own bill as to dismiss the cross-bill. This they could not do, under any rule of law or equity that we are aware of, or have been able to find. True" enough, parties have a right to say what direction they will give their causes, and the complainants in this bill might? have dismissed their bill at any time; but the dismissal of their bill should not, and could not, have prejudiced the defendants, and could not have carried the cross-bill with it.

3. The court charged the jury “ that if complainants in the original bill, set out that the property was sold under an execution in favor of Reynolds & Sons this admission in their bill, that the stock was sold under such execution, will supersede the necessity of producing the fi. fa. of Reynolds & Sons, on the part of Thacker & Co., and introducing the same in evidence to the jury.” Admissions of parties to the record are admissible in evidence, when offered by the other side, with a few exceptions. The complainants were not within either of the exceptions. Code of 1873, section 3781. They had, in the bill, alleged the sale of the railroad stock, under the fi. fa. of Reynolds & Sons; the allegations in the bill were sworn to; why should defendants prove aliwnde, a fact alleged and sworn to by complainants, and which was not contradicted by defendants ? They were admissions of complainants, and were admissible, competent and sufficient evidence.

1. Sheriff’s sales in Georgia are for cash — any other rule would breed the utmost confusion and fraud in the enforcement of judgments and fi. fas. No agreement of the sheriff with the purchaser of property sold at sheriff’s sale, especially after such sale, to dispense with the cash, can affect the rights of the plaintiffs in fi. fa., or other creditors of the defendant whose property is sold. They are entitled to the proceeds of sale at once, if there be no dispute between the creditors as to priority of liens; and when the sheriff is unable to decide which creditor is entitled to the money, he has no authority to credit the purchaser for the purchase money until the disputes between the creditors are settled by the courts. Such an agreement is illegal and a nullity, and the sheriff may demand the purchase money at the time, and upon the failure of the purchaser to comply with the terms of sale, the sheriff may, at his option, proceed against the purchaser for the full amount of his bid, or resell the' property, and proceed against the first purchaser for any deficiency. Code, §3655. Sheriffs are mere ministerial officers, and have no authority to change the terms of their sales — which the law says shall be for cash. Certainly not after the sale is made, and without the knowledge or consent of the parties interested.

5. The other questions made by the record are sufficiently disposed of in the head-notes. We find no error in the charge of the court, upon the facts as disclosed by the record. The verdict was a proper one under the facts, and the law as applicable thereto. The law was properly and fairly given in charge; the evidence not only authorized but required the verdict that was rendered, and there is no reason why it should be disturbed. We therefore affirm the judgment of the court below in overruling the motion for a new trial.

Judgment affirmed.