Odom v. Odom , 205 Ga. 767 ( 1949 )

The motion to dissolve the receivership was based on allegations of fact. Neither the original motion to dissolve, nor the amendment, was verified by the petitioner. The motion to dissolve was not evidence of the facts alleged. The record clearly discloses that there was some hearing and consideration of the motion to dissolve the receivership. The bill of exceptions does not recite that the motion to dissolve was considered by the court on the pleadings alone. There is no evidence incorporated in the bill of exceptions on the hearing on the motion to dissolve, nor is any evidence specified as material to an understanding of the errors complained of. The application to appoint a receiver was duly verified, and set up a statement of facts which authorized, if indeed it did not demand, the appointment of a receiver. Since there is no evidence incorporated in the bill of exceptions and none specified or otherwise brought to this court, no question dependent upon evidence could be decided. Kennedy v. Rogers, 145 Ga. 293 (3) (88 S.E. 974); McBurnette v. Huff, 154 Ga. 452, 453 (114 S.E. 578); Register v. Colter, 171 Ga. 439 (155 S.E. 767). The questions made by the motion to dissolve the receivership were entirely dependent upon evidence, and it follows that the judgment of the court below must be

Affirmed. All the Justices concur.

No. 16764. SEPTEMBER 15, 1949. On October 9, 1948, Mrs. Julian Odom filed a petition for the appointment of a temporary and permanent receiver for certain property of her husband. Her petition alleged that she had been awarded a judgment for temporary alimony (on her petition for divorce and alimony), and awarded certain described personal property. The defendant husband was confined in a hospital in Augusta, Georgia, and it was alleged that, unless a receiver was appointed, the property would be removed or destroyed; that certain personal property had been destroyed, livestock had died, and there was other livestock requiring care and attention. Her application was duly verified.

On March 9, 1949, Mrs. Jessie Odom, as guardian of Julian Odom, moved the court to dissolve the order appointing a temporary receiver, upon the grounds: (1) Mrs. Jessie Odom was duly appointed guardian of the defendant on December 16, 1948, and required to give bond in the sum of $400; (2) there was a final judgment and decree of total divorce between the husband and wife, "and said case between said parties stands res judicata"; (3) there is no longer any legal necessity for a receiver.

Mrs. Julian Odom filed a response to the motion to dissolve the temporary receivership, in which it was stated that for lack of sufficient information she could neither admit nor deny ground 1 of the motion. Grounds 2 and 3 of the motion to dissolve the receivership were denied.

On June 2, 1949, Mrs. Jessie Odom, as guardian of Julian Odom, amended her motion to dissolve the receivership by adding paragraphs 4, 5, 6, 7, and 8. By the amendment she set up a factual history of the litigation between the parties, and alleged that the Superior Court of Cook County was without jurisdiction in the divorce case, that the divorce proceedings were transferred back to the Superior Court of Berrien County, and that a divorce between the parties was granted, and other matters were alleged relating to the litigation between the parties.

On the same date the motion to dissolve the receivership was overruled, and an order was passed that the receiver sell so much of the property as might be necessary to pay the receiver $25 as receivership fees and the costs of the receivership, and that "the remainder of said property . . be delivered to Julian Odom, and the receiver be discharged."

Mrs. Jessie Odom, as guardian of Julian Odom, excepts to the order overruling the motion to dissolve the receivership, and to the order directing the receiver to sell a part of the property for the payment of a receivership fee of $25 and costs.