Opinion
18719.
ARGUED SEPTEMBER 15, 1954.
DECIDED OCTOBER 11, 1954.
Equitable petition. Before Judge Stephens. Laurens Superior Court. April 27, 1954.
C. C. Crockett, W. W. Larsen, Jr., for plaintiffs in error.
R. M. Daley, Lester F. Watson, Carl K. Nelson, Nelson Nelson, Abbot Abbot, contra.
In order for the court order provided for in Code (Ann. Supp.) § 37-410 (Ga. L. 1939, p. 344) to bar the filing of interventions after the date fixed in such order, it is essential that the court have in its control assets to administer, marshal or otherwise dispose of. The court had no assets for such purposes in the instant case, and it was not error to allow interventions after the date fixed in the court order for the filing thereof.
ARGUED SEPTEMBER 15, 1954 — DECIDED OCTOBER 11, 1954.
This is the third appearance of this case in this court, the others being Pope v. Stanley, 202 Ga. 180 ( 42 S.E.2d 488), and Pope v. Pope, 207 Ga. 240 ( 60 S.E.2d 376). For a full statement of facts reference is made to these two cases. In the latter case the writ of error was dismissed as having been prematurely brought to this court, but leave was granted to the plaintiffs in error to file their bill of exceptions as a pendente lite exception. This exception is to a judgment dated March 30, 1950, denying the prayers of a petition or motion for an order barring all interventions filed subsequently to April 1, 1948, said date being fixed by the court in its order of January 19, 1948, as the last date on which interventions could be filed in the case. After a final judgment this court now has for decision an exception thereto and the pendente lite exception to the order refusing to dismiss the interventions and to declare the intervenors forever barred from asserting any interest in the property involved in the litigation.
Since the attack made upon the judgment is squarely and completely based upon Code (Ann. Supp.) § 37-410 (Ga. L. 1939, p. 344), a ruling on whether or not the facts relied upon come within the provisions of that statute will decide this case. While the statute refers to "all equity cases" now or hereafter pending, it joins thereto the qualifying provision, "wherein assets of either or both parties to the cause are being administered, marshaled or otherwise disposed of by the court," thus plainly and conclusively showing that, before the act can be resorted to, the case must be pending in a court of equity, and also assets must then be in the custody of the court for the purpose of being administered, marshaled or otherwise disposed of. This at once clearly excludes from the act all cases, including equity cases, where there are no assets to administer, marshal or otherwise dispose of by the court. In cases covered by the act, upon motion of either party or upon its own motion, the court can, at least 60 days before the trial term, pass an order addressed to all parties concerned, requiring all parties claiming an interest in said assets to intervene not later than a certain date to be fixed by the court not less than 60 days from the date of the order nor more than 90 days from that date, the order to be published in the newspaper in the county in which sheriff's advertisements are published, twice a month for two consecutive months. After the order is thus passed and advertised, and after the expiration of the time for intervening, as fixed by the order, all parties interested in said assets shall be forever barred from intervening in the case.
The decision in Suttles v. J. B. Withers Cigar Co., 194 Ga. 617 ( 22 S.E.2d 129), upheld the act as against the attacks alleging that it offended the Constitution (Code, Ann., §§ 2-103 and 2-2401) and planted that holding upon a construction that the judgment barring one from the right to participate in the fund in court "is a judgment in rem." The assets in that case were in the hands of a receiver appointed by the court. Likewise assets were in the hands of a receiver in Cohen v. McCandless, 202 Ga. 231 ( 42 S.E.2d 739). And while no assets were in the hands of the court in Joel v. Joel, 201 Ga. 520 ( 40 S.E.2d 541), there was no bar order of the court in that case either, because that decision was on a judgment on demurrer to a petition praying for the appointment of a receiver, sale by the receiver of the property described, and a bar order under the 1939 act requiring all parties claiming an interest in the property thus taken into custody of the court to intervene. That decision is in harmony with the statute and the other decisions cited above in the indispensable requirement that equity courts can issue bar orders as provided in the statute only in cases where such courts have in hand assets that are being "administered, marshaled or otherwise disposed of by the court."
There were no assets in the present case in the hands of the court when the order to intervene by April 1, 1948, was entered on January 19, 1948. Therefore, it follows that the court did not err in rendering the judgment of March 10, 1950, denying the prayers of the petitioner to strike all interventions filed subsequently to April 1, 1948; consequently the final judgment is not erroneous as contended because it was the result of an erroneous judgment rendered March 30, 1950, refusing to strike the interventions.
Judgment affirmed. All the Justices concur.