Opinion
31759.
DECIDED JANUARY 22, 1948.
Contempt; from Fulton Superior Court — Judge Hooper. April 22, 1947.
Phillips Johnson, for plaintiff in error.
Hoke Smith, Spalding, Sibley, Troutman Kelley, James A. Branch Jr., Paul Webb, Solicitor-General, contra.
1. Service, under Rule 26, on the attorney of record for any party is sufficient service notwithstanding the provisions of the Code, § 81-213.
2. "Many facts, especially those resting peculiarly within the knowledge of the opposite party, may be alleged in general terms."
3. ( a, b) The possession of canceled checks raises a presumption that they were paid in due course. The possession of a deposit slip in a bank purporting to be a deposit in the regular course of trade raises a presumption that the deposit was made as the deposit slip indicates.
( c, d) The court did not err in requiring the defendant to answer certain questions pertaining to the defendant, on the ground that they would tend to incriminate him, nor in admitting the answer of the defendant filed in the original suit.
( e) Even in a contempt proceeding requiring a defendant to deliver up or account for his assets to a receiver, and where a voluntary transaction between him and his wife is attacked for fraud, the burden shifts to the defendant to show the bona fides of such transaction.
4. A judgment for contempt of a court order will not be disturbed unless there be a flagrant abuse of discretion.
DECIDED JANUARY 22, 1948.
We shall refer to the Dixie Paint and Varnish Company as the plaintiff, and F. D. Beebe as the defendant, and Hoke Smith Jr. as receiver. The plaintiff, a corporation of this State with its principal office and place of business in Brunswick, Georgia, instituted an equitable proceeding against the defendant, trading as "S. and W. Paint Products Company." Omitting the formal paragraphs, the petition alleges:
"3. Said defendant is in possession of funds of petitioner amounting to $17,172.45 by virtue of the facts hereinafter set forth. Said defendant has no right to retain said funds, but holds said funds in trust for your petitioner and is legally obligated to deliver same up to petitioner.
"4. Defendant was an employee of petitioner conducting a wholesale paint business under the trade name of `S. and W. Paint Products Company' at 539 Courtland Street, N.E., Atlanta, Georgia, in premises which were under lease to your petitioner.
"5. The defendant was employed by petitioner under a working arrangement whereby the defendant procured orders from customers, forwarded such orders to petitioner who made shipments against such order direct to customers. Collections for such shipments were made by defendant and in accordance with the working arrangement referred to above, were to be remitted by defendant to your petitioner.
"6. The aforesaid working arrangement between petitioner and defendant has been in operation for approximately two years and until the events recounted hereinafter was satisfactorily executed by all parties thereto.
"7. Under the aforesaid arrangement, defendant procured orders from certain customers, a list of such orders being attached hereto marked Exhibit A and made a part hereof.
"8. Pursuant to the aforesaid working arrangement petitioner made shipment to the aforesaid customers of the items ordered by them and invoiced such shipments to defendant.
"9. Defendant has collected the proceeds of such sales from said customers.
"10. The total proceeds of such sales collected by defendant amounted to $23,412.36.
"11. On April 24, 1947, defendant surrendered to petitioner certain merchantable wares to which he individually held title of the agreed total value of $6,239.91 to be credited against his liability to petitioner for the balance due as set forth in the preceding paragraph of this petition. This payment reduced the amount of such liabilities to $17,172.45.
"12. Despite repeated demands therefor, defendant has failed and refused to remit to petitioner the funds of petitioner which he holds, or to make any accounting to petitioner for such funds.
"13. Defendant is insolvent.
"14. Petitioner alleges upon information and belief that defendant, either in his own name, or in his wife's name, or in their joint names, or in a trade name has accounts in the Citizens and Southern National Bank in Atlanta, Georgia, and in the Lewis State Bank in Tallahassee, Florida. Petitioner further alleges on information and belief that its funds which defendant holds illegally are concealed in said accounts and petitioner is apprehensive that defendant will dispose of said funds so that they can not be traced unless he be enjoined and restrained from doing so.
"15. Petitioner for several days past has attempted to contact the defendant, but has been unable to locate him. Defendant's office at 539 Courtland Street, N.E., and his residence at 6 Pine Circle, both in Atlanta, Georgia, appear to have been vacated. None of defendant's family and none of his office force can be located. Accordingly, the petitioner alleges on information and belief that the defendant has absconded.
"16. Petitioner is without adequate legal remedy and unless it be given the assistance of a court of equity its rights and property will be without protection."
Aside from the prayer for process and service on the defendant, the prayers were:
"b. That defendant be restrained and enjoined from disposing of any of his property or assets or withdrawing directly or indirectly through agents any amounts from any bank accounts which he controls or in which he has an interest until further order of this court.
"c. That a temporary receiver be appointed to take charge of the assets of defendant, and that defendant be required to show cause on a day certain why the appointment of such receiver should not be made permanent.
"d. That defendant be required to account to petitioner for the funds of petitioner which he holds as set forth above.
"e. That petitioner have judgment against defendant in the amount of $17,172.45 and costs of court.
"f. That petitioner have such other and further relief as to the court may seem proper."
This petition was filed on April 20, 1947. The court sanctioned the petition on April 20 (30?), 1947, appointed a temporary receiver, ex parte, and restrained the defendant, until further order of the court, from "disposing of any of his property or assets, and from withdrawing, directly or indirectly through agents, any amount from any bank accounts which he controls or in which he has an interest." The defendant was required to show cause on May 30, 1947, why the prayers of the petitioner should not be granted and the receivership continued, "and why the defendant should not be required to account to the petitioner as prayed." On May 28 thereafter, the defendant filed his answer, omitting the formal parts, as follows:
"2. The allegations of paragraphs 3, 4, 5, 6, 7, 8, 11, 12, 13, 14, 15, and 16 of the petition are denied.
"3. For lack of sufficient information the allegations of paragraphs 9 and 10 can neither be admitted nor denied because of the large volume of business defendant has done and the large amount of money he has paid petitioner covering many transactions, and because petitioner and the receiver appointed in this case have seized all of defendant's records so that it is impossible for this defendant without records to say what sales are covered by the statement attached to plaintiff's petition and whether or not they were covered by checks remitted to petitioner by defendant.
"4. For further plea and answer defendant says that he has never been employed by plaintiff in any capacity; that he has been engaged in business for himself under the trade name of S. and W. Paint Products Company; that defendant has purchased from petitioner on open account and in turn has sold on credit and for cash, extending credit where defendant felt safe in extending credit, and he has operated as an independent contractor. If defendant is indebted to plaintiff in any amount it is for credit extended and not by virtue of any employer-employee relationship between petitioner and defendant.
"5. It is true that petitioner has shipped goods direct from its warehouse to this defendant's customers, but only as directed by this defendant, the invoices in all cases being made to this defendant, and the customers to whom the shipments were made were invoiced and billed by this defendant. Such customers were not indebted to petitioner but to this defendant. Such customers did not know petitioner in the transaction and did not apply to petitioner for credit and were not extended credit by petitioner. They purchased from this defendant on credit extended by this defendant, and paid this defendant for the merchandise purchased although delivered by shipment direct from petitioner's warehouse pursuant to directions from this defendant. All sales made by this defendant were collected by this defendant, and the total proceeds of sales made by this defendant were far in excess of the amount stated in paragraph 10 of plaintiff's petition.
"6. It is admitted that petitioner has demanded payment of the amount claimed in paragraph 11 of its petition, but this defendant has failed and refused to pay said amount because he denies indebtedness of this amount to petitioner.
"7. For further plea and answer this defendant alleges that at the request of petitioner this defendant went to petitioner's offices in Brunswick, Georgia, for a conference with petitioner, and before the conference was concluded in the evening it was agreed that defendant and plaintiff's officers would reconvene in plaintiff's office next morning. Pursuant to that agreement this defendant appeared at plaintiff's offices next morning, but plaintiff's president, W. Q. Walker, had left for Atlanta and did not meet the appointment with this defendant. Subsequently, in this defendant's absence said plaintiff by and through its said president without any authority whatsoever invaded this defendant's offices at 539 Courtland Street, N.E., and pilfered and seized this defendant's private business records, checks, check books, correspondence, contracts, receipts, cancelled checks, bank statements, and all of this defendant's records, making it impossible for this defendant to allege the facts as they exist in detail, and making it impossible for this defendant to produce records to prove his defense, and defendant alleges that petitioner should be required by this honorable court to return all of said records, checks, check books, bank statements, correspondence and writings of all kinds without further delay.
"8. Defendant further shows the court that a day or so before the conference between petitioner and defendant in the offices of petitioner, a day or so before the petition was filed in this suit, this defendant had an appointment with plaintiff's president, W. Q. Walker, to meet in Florida, and this defendant had made arrangements with his Florida agent for the transaction of certain business when defendant made said Florida trip. It was therefore necessary for this defendant to go to Florida during the week plaintiff's president was pilfering and prowling around Atlanta and the office of this defendant. Petitioner knew this defendant was in Florida at the time it claims to have been attempting to contact this defendant, and at the time it claims to have been to this defendant's office and at the time it alleges it found none of this defendant's family at home, and at the time plaintiff alleges that this defendant had absconded. The truth is that petitioner through its president knew where to locate and contact this defendant all the time. As a matter of fact, petitioner's president has tried to make it appear that this defendant concealed himself and fled the State, whereas this defendant was making a trip pursuant to plans previously made, of which trip petitioner through its president had complete notice, and the allegations of paragraph 15 of plaintiff's petition is nothing but part and parcel of a plan and scheme of petitioner to smut and smear this defendant in an attempt to so discredit defendant as to coerce and intimidate him into paying plaintiff the amount it claims, without question and without first verifying and checking the records; and, lest this defendant succeed in proving plaintiff's claim false plaintiff wrongfully invaded this defendant's offices in his absence and seized all of his records and thereupon sought to further intimidate and coerce him by causing him to be wrongfully indicted by the grand jury on false and perjured testimony. After obtaining said indictment with full knowledge of the whereabouts of this defendant plaintiff through its said president sought to create the impression about the community that this defendant was a fugitive from justice for the purpose of further discrediting and embarrassing this defendant to make it impossible for this defendant to make bond or obtain his records with which to prepare his defense and enable plaintiff to gain enough advantage to make this defendant believe it would be impossible for him to adequately prepare and defend himself so that he would believe there was no alternative but to yield to plaintiff's demands and under the influence of such a belief yield and comply with plaintiff's wrongful demands.
"9. This defendant shows the court that said false and fraudulent representations were made to the court for the purpose of obtaining the appointment of a receiver to seize and take charge of this defendant's place of business and what records petitioner had left, and on said showing a receiver was appointed on the 30th day of April, 1947. This receivership should be vacated and set aside. Until it is vacated and set aside plaintiff should be required to furnish good and sufficient bond for the payment of all damages this defendant sustains by reason of the wrongful receivership."
On June 20, thereafter, the receiver made application to the court to the effect that he had made demand upon the defendant for the surrender of the assets of the defendant to the receiver. The receiver alleged on information and belief that the defendant had assets which he had not turned over to or accounted for, to the receiver; that the demand by the receiver was made by sending a registered letter to the defendant in care of his attorney; that an agent of the defendant received the letter; and that the receiver verily believes that the defendant is disposing of his assets, or some of them, contrary to the order of the court. The prayer in this application was to the effect that a rule nisi issue, directed to the defendant, to appear before the court and show cause why he should not be adjudged in contempt of court for violation of the court's order. The court passed an ex parte order that this application for contempt be served on the defendant by serving his attorney of record in the case. This was on June 23, 1947, and the attorney of record for the defendant in the main case and in the contempt proceeding was served on the next day thereafter. The contempt proceeding came on for hearing on July 7, thereafter. Before the hearing on the application the defendant by and through his attorney of record made a motion to vacate the service of the application for contempt as follows:
"1. The order to serve respondent by serving his attorney of record was and is contrary to law.
"2. The court was without jurisdiction to enter the order to serve respondent with the contempt rule by serving his attorney of record.
"3. Respondent has never authorized his attorney of record to accept service of any process or contempt rule.
"4. The delivery of a written demand to surrender property to said receiver has never been authorized by this respondent and this respondent has authorized no agent to accept service of any written demand on this respondent, and no demand has ever been made on this respondent for the surrender of any property.
"5. In this respondent's absence from the city the plaintiff in the above stated case and the receiver appointed in this court has seized and removed properties and records of this respondent in respondent's absence and this respondent has been without the benefit of his records so it is impossible for him to determine what was taken and what was not taken, but respondent alleges that plaintiff in said case or the receiver in said case took charge of the place of business, changed the locks and locked the doors, and your respondent has been advised not to interfere with the court's possession.
"Wherefore, respondent prays that the order to serve his attorney of record be vacated and that the service in said case on respondent by serving his attorney of record be declared of no effect and vacated."
This motion was overruled, and thereafter the defendant filed a demurrer to the application as follows:
"It does not set out any grounds for citing this respondent for contempt.
"2. Respondent demurs to paragraph 1 of the application on the ground that it is too indefinite and uncertain because it does not say what this respondent was called upon to surrender to the receiver except that he was called upon to surrender `all his assets' and this respondent contends that this is too general, [uncomprehensive?] comprehensive and uncertain.
"3. This respondent demurs to paragraph 2 of said application for said contempt rule on the ground that it does not allege that respondent ever received the registered letter therein mentioned and it does not allege that any other demand was ever made on respondent, and on the further ground that the allegation that the letter was received and receipted for by an agent of respondent is a conclusion of the pleader. It does not allege who received or receipted for said registered letter.
"4. Respondent demurs to paragraph 3 of said application on the ground that it is too general, indefinite and uncertain because it does not allege what this respondent has in the nature of assets that has not been seized by the receiver.
"5. Your respondent demurs to that part of paragraph 3 of the application for the contempt rule which alleges that `petitioner verily believes that the defendant is disposing of his assets or some of them' on the ground that this is not an allegation of a fact and is insufficient."
This demurrer was overruled. The court proceeded to hear evidence as to whether the defendant should be adjudged in contempt of court for not turning over his assets to the receiver or accounting for them. The defendant was called upon by the receiver as a witness on behalf of the application. The defendant was asked by the receiver a number of questions concerning his business transactions in the conduct of his business within a few weeks prior to the appointment of the receiver; and also as to what property the defendant owned at the time of the hearing on the contempt proceedings; and as to whether he had been or was, at the time of the hearing, connected with the S. and W. Paint Company. He was asked concerning a check issued on April 7, 1947, from the Campbell Coal Company, for $1727.50; and also as to whether he received a check from the Campbell Coal Company on April 18 for $1725.55, and on April 5 from the Campbell Coal Company for $5722.20, and from the same source on April 3 for $1465.20; and from the Beck and Gregg Hardware Company on April 17 a check for $7209.97; and on April 19 checks from the Beck and Gregg Hardware Company for $3288.51 and $4000. He was asked if he owned an equity of redemption in a 500 h.p. air compressor and a spray gun; and was asked what his occupation was during the month of April, and if he had sworn to the answer which he filed in the main suit. He was asked concerning certain invoices, attached to the petition, for paint shipped to customers by his order; and was asked if he owed any debts. The defendant declined to answer any of the questions on the ground that they might tend to incriminate him in a trial then pending in the superior court for larceny after trust. There were certain other questions which the defendant was required by the court to answer. He was asked as to whether he had any cash. Upon the court requiring him to answer, he answered that he had $104 at the time of the hearing. He was asked and required by the court to answer if he owned an automobile. He stated "No." He was asked if on April 24, 1947, he was in possession of $1000 in cash. This he refused to answer. He was asked if he owned any stock in the Water Proofing Material Company. He declined to answer this question. The court required him to answer it, and his answer to the receiver was: "You have the Water Proofing Material Company records. I have no records to go by or answer from. You have them all locked up." Counsel for the defendant at this point stated: "We are prepared to admit, your Honor, that there was money paid by this respondent (the defendant) to his wife. I can't say what amount. I haven't seen the records." The defendant stated further that he believed he did own some shares in the Water Proofing Material Company, but that he did not know where they were; that he would have to look at the books to see; that he was still president of the Water Proofing Material Company. He was asked if he drew a salary for his services at present. He was asked if any trade customers owed him any amount. The receiver exhibited to the defendant a check (the record does not show what amount or on whom drawn). He declined to answer the question concerning this check. The court required him to answer the question, and he answered, "I can't tell without the records." Thereupon the receiver stated, "Here are your records." The witness then replied, "I can't go through them in two minutes." He was then asked if he had made any effort to see his records, and the witness answered that he was told the records were locked up. The receiver then propounded to the defendant the question, if he, the defendant, did not know that the receiver had been trying to arrange an appointment with the defendant, to which the defendant replied that he did not know. He was asked if the receiver had not been trying to arrange an appointment since April 3. The defendant answered that he did not know. He was asked if he owned any real property. He said that to answer that question might incriminate him, and he answered that he did own an interest in some real estate in Florida, but that he did not collect any rents. He was asked if $104 was all the personal property he owned, and he answered that that was all except his wife's property and a couple of fishing poles. All other questions concerning the business transactions he declined to answer, except those above indicated. Photostatic copies of the checks above referred to from the Beck and Gregg Hardware Company and Campbell Coal Company were introduced in evidence, all of which were made to the S. and W. Paint Products Company, the trade name of the defendant; and the supervisors of the paying departments of Beck and Gregg Hardware Company stated that the checks had come back to them in their regular statements and marked paid. They were all indorsed by S. and W. Paint Products Company. There was one check dated April 24, 1947 for $1000, made payable to F. D. Beebe, and signed by S. and W. Paint Products Company by F. D. Beebe. Certain photostatic copies of deposit slips of the Citizens and Southern National Bank, in favor of the S. and W. Paint Products Company at their business address, were exhibited. On April 22, 1947, S. and W. Paint Products Company issued a check to Mrs. Selma Beebe for $5000. This was indorsed "for deposit only," and deposited in the Citizens and Southern National Bank.
At the conclusion of the testimony, the court adjudged the defendant in contempt and ordered that he be held in the common jail until he purged himself by paying $6000 to the receiver. This represented the $5000 check issued to Mrs. Selma Beebe on April 22, and the $1000 check which the defendant issued to himself on April 24. The defendant excepted to the overruling of his motion, first, to vacate the service on the application for contempt; second, to the overruling of his demurrer to the said application; third, to several rulings as to the admission of testimony and documentary evidence; and fourth, to the final judgment adjudging the defendant in contempt. We will discuss these questions raised in the order which we have outlined.
1. The application for contempt was served on the attorney of record for the defendant. It is the contention of the defendant that the service of the application of the receiver for contempt on the attorney of record for the defendant was contrary to law and ineffectual, and that any further proceedings in the contempt case were nugatory. This contention of the defendant is based on the provisions of the Code, § 81-213, which reads as follows: "Service of extraordinary process. When extraordinary process shall be granted, the clerk shall annex the same, together with the process, to the original petition, and also a copy thereof to the copy petition. Such petition and process shall be served only by a sheriff or his deputy, or a coroner, and must be personal." It is contended that, under the provisions of this Code section, the service should have been upon the defendant personally. On the other hand, the receiver contends that the Code (Ann. Supp.), § 24-3326, is controlling. That section reads as follows: "Rule 26. Service on attorney of record. The service of any notice, process, motion, rule or order of the court on the attorney of record for any party to a cause pending in any court in this State shall be deemed sufficient service." We have given not only research, but much consideration to this question. We find that Code § 81-213 first appeared in the Code of 1863, and has been brought down through all the Codes since that time substantially as it appears in the present Code. In 1821 (Ga. L. 1821, p. 77), the General Assembly authorized the judges of the superior courts in annual convention to pass rules of practice for the superior courts. This authority continued until 1937 (Ga. L. 1937, p. 464), at which session the General Assembly reduced the power and authority of the judges of the superior courts to pass rules of practice, and authorized them in annual convention to make recommendations to the General Assembly as to rules of practice in the superior courts. At the session of 1937, when this authority was withdrawn by the legislature from the judges of the superior courts, several rules which the judges had theretofore passed were repealed. But practically all of the rules were retained, including Rule 26 as codified under the 1945 Supplement to the Code (Ann. Supp., § 24-3326). We have been unable to determine just when this rule was passed by the judges. It appeared first in the Code of 1895. As we view the question, it does not become necessary for us to determine whether Rule 26, as passed by the judges in convention, was prior or subsequent to the legislative act pertaining to the provisions of the Code, § 81-213. This is true for the reason that, in our view, there seems to be no conflict between Rule 26 and the provisions of the Code, § 81-213, as both appear in the present Code. If they can be construed in pari materia, to give the provisions of each section effect, it is our duty to do so. The provisions of Rule 26 apply only to service on the attorney of record after the defendant has been properly served and brought into court, and has employed an attorney to represent him. If the defendant had not been so served and required to appear in court, he would have no attorney of record; but since he was so served and required to appear, and did appear, through an attorney of record, then and then only, thence on may he be served by his attorney of record. Accordingly, the application for contempt in the instant case, having been served on the attorney of record, was a valid service There are many other cogent reasons why the service of the defendant by serving his attorney of record is wise and practicable. We see no reason, though, to discuss the question further.
2. We have set forth the application for contempt and the amendments in the statement of the case, as well as the demurrer of the defendant to the application. We will not repeat them. The gist of the demurrers to the application of the receiver is to the effect that the application did not allege any facts sufficient to show contempt, for the reason that the allegations did not allege what assets the defendant had failed or refused to surrender to the receiver, and did not put the respondent on notice of what would be brought up on the trial. We are aware that on a demurrer the court must construe the pleadings most strongly against the pleader, and that as to specifications the petition must comply with the provisions of the Code, § 81-101. The heart of the application for contempt is that the defendant failed and refused to deliver up or account for his assets, to the receiver. It would seem that whether the defendant, under the allegations of the original petition and under the order of the court appointing the receiver, had delivered up and accounted for his assets, was peculiarly within his knowledge, and in such a situation the receiver would not be required to go further into detail. This court held in Cedartown Cotton Co. v. Miles, 2 Ga. App. 79, 81 ( 58 S.E. 289), as follows: "Many facts, especially those resting peculiarly within the knowledge of the opposite party, may be alleged in general terms." 49 C. J. p. 38, § 14, reads: "Facts which are, or which the law presumes to be, peculiarly within the knowledge of the other party may be alleged with less certainty and particularity than would otherwise be necessary, or may be alleged on information and belief; and they may even be omitted entirely." See also South Georgia Power Co. v. Beavers, 39 Ga. App. 374 ( 146 S.E. 924). Also, see Ingram, Georgia Pleading and Practice, p. 261, § 198, which is to the effect that a litigant is not required in his pleadings "to disclose the evidence by which he expects to establish the traversible facts alleged in the petition." In view of this record, the court did not err in overruling the demurrer to the application for contempt.
3. ( a) On behalf of the defendant there are numerous assignments of error touching the evidence in the record upon which the court adjudged the defendant in contempt. It might be well to state that the original petition for the appointment of a receiver alleged that he received in trust from the plaintiff paint to be shipped upon the defendant's order, invoices of which were attached to the petition. The shipments were made, a good many of them at least, to Beck and Gregg Hardware Company and Campbell Coal Company, from which purchasers the defendant under a trust arrangement was to and did receive the payments from these two corporations. These amounts approximated $23,000, and the concerns issued checks to the defendant within approximately three weeks prior to the appointment of a receiver, and the checks were deposited by the defendant in his trade name. Also, it may be kept in mind that the plaintiff in the original petition alleged, and it was admitted throughout, that, after the receiver had been appointed while the defendant was in Florida, the receiver by order of the court took charge of the place of business and records, including deposit slips for the amounts so collected. Also, in the records which the receiver seized at the place of business of the defendant, was a check to the defendant for $1000 dated six days prior to the date the receiver was appointed, and a check to the defendant's wife for $5000 drawn out of the defendant's bank account. In the hearing for contempt the receiver was endeavoring to present evidence to show that Beck and Gregg Hardware Company and Campbell Coal Company had paid these large amounts to the defendant, and that the defendant had received and deposited them in his bank account. When representatives of Beck and Gregg Hardware Company and Campbell Coal Company were on the stand, the defendant objected to the introduction of the checks showing payment to him by these two concerns. These objections were based largely on the ground that the testimony of the agents who handled and directed the writing of these checks, by Beck and Gregg Hardware Company and Campbell Coal Company, to the defendant and the receiving of the checks, marked paid and canceled, to the account of the defendant, was hearsay. The evidence, however, showed that these agents supervised these transactions and accounts of the corporations and balanced these accounts with the accounts of their bankers. These checks showed that they were made payable to the defendant, and indorsed by him. The deposit slips in the defendant's bank corresponded with those amounts. On this question, 6 Zollman on Banks and Banking, p. 147, § 3751, states: "The significance of the `paid' stamp on the check, or the fact that the check itself is placed on the `canceling fork,' should not be overestimated. It will not necessarily establish payment, though it warrants the presumption that the check has been paid." We might also in this connection call attention to the rule that payment of a note is presumed from possession of it by the maker after maturity. McCamy v. Cavender, 92 Ga. 254, 260 ( 18 S.E. 415). Therefore, the objections to the introduction of the checks of Beck and Gregg Hardware Company and Campbell Coal Company and the deposit slips of the defendant, which the receiver obtained through the defendant's records, are without merit.
( b) There are assignments of error on the introduction of the check for $1000 which the defendant drew out of his account six days before the receiver was appointed, and the check for $5000 made to Mrs. Selma Beebe. These checks were found in the effects of the defendant and were marked paid. In our opinion the admission of all these documents was proper and the court did not err for any reason assigned in admitting them for consideration.
( c) As will be noted in the history of the case set out in the statement of facts, the defendant in his sworn answer to the original petition wherein a receiver was appointed, denied the material allegations of the petition and further answered as therein shown. This answer was offered in evidence by the receiver. The defendant objected to its admission on the ground that it was illegal and incompetent, for that its introduction might be used later in a criminal action which was then pending against the defendant for larceny after trust concerning the same subject-matter. It is specifically pointed out that the court erred in admitting the paragraph of the defendant's answer to the effect that he was insolvent, on the ground that such evidence was irrelevant and immaterial and contrary to law. We will discuss that subparagraph with other errors assigned concerning questions which were propounded to the defendant while he was on the stand. As we have heretofore shown, the court required the defendant to answer certain questions over the objections that the answers would tend to incriminate him. The defendant was required to answer as to how much money he had on the date of the trial. He was asked if his trade creditors were indebted to him, and was asked certain other questions concerning his business transactions just prior to the appointment of the receiver and thereafter. The court required the defendant to answer as to the cash he had. He stated $104. The defendant refused to answer other questions pertaining to his business transactions on the ground that he did not have his records — that they had been taken charge of by the receiver. The records were in court, however, and they were tendered to the defendant. He stated that he could not examine them in two minutes. He did not ask the court for any additional time in which to examine them.
( d) We will discuss next the assignments of error on the admission of the answer of the defendant in the main case, and the assignments on requiring the defendant to answer certain questions over his objection that the answers would tend to incriminate him. In Tolleson v. Greene, 83 Ga. 499 ( 10 S.E. 120), Tolleson had been jailed for refusing to deliver assets to a receiver. Tolleson brought a petition for habeas corpus, in which he alleged: "Even if he had possession, custody, or control of any of the assets of defendant corporation, he can not be compelled by the court to produce them, because to do so would be to furnish evidence that would tend to convict him of crime. Complainants in the bill filed against the defendant corporation, have sworn out warrants charging him with a crime in connection with these very assets, and if the court should compel him to produce the assets, it would be to furnish evidence to convict him of the crime charged against him in said warrants. He further shows that his imprisonment is illegal, in that it is imprisonment for debt. Since these warrants have been sworn out against him, he ought not to be further detained in prison, but said creditors ought to be left to their criminal prosecution; otherwise, if convicted of said crime, he would be punished twice for the same offense." The trial court dismissed the writ. The Supreme Court made this comment in affirming the judgment of dismissal: "To come at once to the essence of this case, the mistake, we conceive, of counsel for the plaintiff in error, is in not drawing the distinction between discovery and relief. No discovery of facts which would tend to criminate the party can be compelled. Story Eq. Pl. §§ 591 to 594. But as a measure of relief, to compel a party to part with property which he may have stolen is no violation of any privilege which the law gives. Id. § 525. There certainly can be no privilege in any person to hold on to the fruits of crime as a means of preventing punishment. Here, according to the petition for habeas corpus, the plaintiff in error made no disclosure to the court, and so far as appears, was not called upon to make any prejudicial to his own innocence. He never did confess even to the possession of the assets in question; and taking the petition for habeas corpus and the recital in the order of commitment together, the court ordering the commitment must have become satisfied from other evidence that he had the possession of the assets, and could turn them over to the receiver. The order so to surrender them was not a measure of discovery but of relief. It was one of the steps in the cause tending to ultimate relief by final decree, and a means to make the same effective.
"All the citations of authority by counsel going to show that no party or witness can be required to answer questions tending to criminate himself, we recognize as sound law, such as the cases of Ex parte Fisk, 113 U.S. 713 [ 5 Sup. Ct. 724, 28 L.ed. 1117], and Holman v. The Mayor, 34 Tex. 668. If the present case came within the letter or principle of such authorities, we should entertain no question of the right of the plaintiff in error to a discharge. But how will surrendering the assets of one bank tend to convict the party of embezzling or stealing the assets of another bank? Or supposing them to be the same assets and therefore the assets of both banks, how would his surrender of them tend any more to convict him of embezzling or stealing than would his retention of them? It seems to us that a prompt surrender in obedience to an order of the proper court would be favorable to innocence rather than evidence of guilt. If his denial of possession and his delay to surrender would bear against him more hardly by reason of the surrender when finally made, this would not be the fault of the court in coercing a surrender, in spite of his denial and delay, but his own fault in denying and delaying. Is a court to stop short in obliging a contumacious party to comply with a lawful order touching relief, because such party has denied the fact on which the relief is founded, and delayed complying with the order? We think not. Suppose a man steals a horse and a statutory possessory-warrant is sued out, can the thief keep the horse and refuse to produce it under the warrant, because to produce it would tend to criminate him? If so, an honest man would be on a worse footing in court than a thief. Is it not enough to protect the thief against furnishing evidence that he has the horse; but when evidence satisfactory to the court comes from another source, must the court forbear to give effect to it because the horse was stolen rather than taken under an honest claim of right? Surely no such discrimination in favor of criminal possession is made or can be made by the law of the land."
The record in the instant case reveals that the defendant made no effort whatsoever to account for the large amount of money which he collected within a few weeks prior to the appointment of the receiver, although the receiver, as admitted by the defendant through his attorney, tried again and again to get the defendant to do so before the application for contempt was filed. In this connection counsel for the defendant relies on the case of Loewenherz v. Merchants c. Bank of Columbus, 144 Ga. 556 (5) ( 87 S.E. 778, Ann. Cas. 1917 E., 877). The facts in that case differentiate it from those in the instant case, as will be readily seen, we think upon comparison, in the light of the decision in the Tolleson case, supra.
( e) We come next to discuss the $5000 which Mrs. Selma Beebe received out of the funds of the defendant's business in question eight days before the receiver was appointed. Counsel for the defendant contends that there was no evidence that the payee was the wife of the defendant. From reading the record we are convinced that the trial judge was authorized to infer that Mrs. Selma Beebe was the wife of the defendant. Indeed, able counsel for the defendant during the taking of the testimony stated that they were prepared to admit that the defendant made payments to his wife, but that he did not know how much. But counsel for the defendant contends that, even if Mrs. Selma Beebe was the wife of the defendant, she was a feme sole as to her separate estate under the Code, § 53-503, and without a jury trial finding the transaction to be fraudulent, the judge was without authority to require the defendant to deliver up funds which had been transferred to his wife. It seems that under the facts of this case according to the evidence regarding the time of the payment of this $5000 to the defendant's wife, and under the circumstances surrounding it, the burden shifted to the defendant, even in this contempt proceeding, to show that the paying of this $5000 to his wife was a bona fide transaction and not a fraudulent one. Code, § 53-505. The defendant could at least have co-operated with the court, if he could do so, to show that this transaction was not a fraudulent one but was based upon a valuable consideration. It is contended that the defendant was not sufficiently informed, as to the evidence which was produced against him concerning his assets, to have his wife present. We are quite sure that, if the defendant had requested sufficient time, the court would have granted him such time as was necessary to procure his wife to explain the bona fides of this transaction, if she could. The defendant made no such request, but throughout all the transaction closed his lips like a clam until the court did, in a few instances, prize them apart, and then only to obtain a very meager account, whispering, as it were, concerning the business transactions of the defendant. Insofar as the money which the court requested the defendant to deposit, $6000 to purge himself of contempt, this did not finally determine whether the $5000 transaction was a bona fide one as between the husband and wife. This question, of course, will be determined finally by a jury in the trial of the main case. But under the evidence as it developed at the hearing for contempt, the judge was authorized to find that the $5000 comprised assets of the defendant for which he should have accounted in the contempt hearing.
The court did not err for any of the reasons assigned in each of the subdivisions of this division of the opinion.
4. As to the general grounds, the evidence amply authorized the trial court to adjudge the defendant in contempt for not turning over his assets to the receiver, or in lieu thereof to account for them. In Cabot v. Yarborough, 27 Ga. 476, 478, the court said: "The question, whether there is a contempt of a court, and the question whether, if there is one, it ought to be punished or ought to be excused, and other questions, as to contempt, are questions for the discretion and judgment of that court. And there can be little danger that a court will fail in the duty of having itself sufficiently respected. Whatever decision then, it comes to, on such questions, ought to be final, at least, unless there is something in the decision to show a most flagrant abuse of the discretion." See also Remley v. DeWall, 41 Ga. 466 (5); Thweatt v. Gammell, 56 Ga. 98; Reid v. McRae, 190 Ga. 323, 334 ( 9 S.E.2d 176).
The court did not err in adjudging the defendant in contempt for any of the reasons assigned.
Judgment affirmed. MacIntyre, P. J., and Townsend, J., concur.