STRICKLAND v. WILLIAMS, Receiver, et al., 215 Ga. 175, 109 S.E.2.d 761 (1959)
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Copeland & Smith, J. Lundie Smith, H. C. Eberhardt, C. J. Taylor, W. W. Rehberg, R. E. Bradford, W. J. Gibbons, Ben F. Johnson, Jr., Deputy Assistant Attorney-General, contra.Tillman & Brice, for plaintiff in error.
The trial court did not err in sustaining the demurrer of the receiver to so much of the intervention as sought the recovery of attorney's fees.
On April 22, 1958, James A. Parramore, doing a banking business under the name of "Industrial Banking Company," filed a voluntary petition for the appointment of a receiver and liquidation of his assets for the benefit of creditors. On the same date, George R. Williams was appointed temporary receiver by order of the court. On April 28, 1958, A. J. Strickland, III, delivered to the receiver the collateral and choses in action assigned by the debtor to him by written assignment and transfer duly recorded.
On May 2, 1958, Strickland filed his intervention, wherein he alleged that Parramore was indebted to him in the sum of $23,451.25. Attached to his intervention was a copy of the note to him by Parramore (originally for $27,000, and showing certain credits), together with the written assignment and a list of the collaterals assigned. Also attached was a copy of the trust receipt given by the receiver to him at the time the collaterals were turned over to the receiver. On May 9, 1959, the court entered an order appointing George R. Williams permanent receiver, requiring that he give bond, and directing the manner in which the duties of the receiver should be discharged.
On June 13, 1958, Strickland filed an amendment to his intervention, praying that the court adjudge that he had the legal night to possession and control of the collateral assigned to him by Parramore, that the receiver be required to account fully in the premises, that the receiver be ordered to deliver to the intervenor all collateral held by him under the trust receipt, and for other relief. On the same date, the judge ordered the receiver to show cause why the prayers of the amendment should not be allowed.
On November 24, 1958, Strickland filed a second amendment to his intervention, wherein it was alleged: Pursuant to Code (Ann.) 20-506, as amended on June 27, 1958, through his attorneys, he served the debtor and the receiver with notices that the intervenor would enforce the provisions of the note with regard to attorney's fees, by mailing such notices to them and to their counsel of record, the notices having been received in due course on June 28, 1958. On July 9, 1958, there remained outstanding on the indebtedness due him the sum of $10,960.24, and he is entitled to collect $1,096.02 as attorney's fees. The general demurrer of the receiver to the claim for attorney's fees was sustained, and the exception is to that judgment.
1. The alleged notice that the intervenor "would enforce the provisions of the said note, . . . with regard to the payment of attorney's fees" was given more than 60 days after the debtor (Parramore) had filed a voluntary petition for the liquidation of his assets and the payment of his debts through the appointment of a receiver. A temporary receiver was appointed on the same date the petition was filed.
A person who has been appointed receiver of the property of an insolvent debtor, by the order of a court of competent jurisdiction, becomes an executive officer of the court and the property received by him is in custodia legis. Tindall v. Nisbet,
In the present case, the bill of exceptions recites that, prior to the order of the court sustaining the receiver's demurrer to the claim of the intervenor for attorney's fees, the receiver had paid to him the principal and interest in full of the amount due him by the insolvent debtor. In his amendment to his intervention, he alleged that he was the legal owner of the notes and collateral delivered by him to the receiver under trust receipt, and he sought a judgment of the court directing the receiver to return to him all notes and receivables held by the receiver under the trust receipt. The debt of the intervenor was not collected by or through an attorney at law, but, on the contrary, the intervenor and his attorney sought to prevent the collection and payment of his claim by the receiver.
Counsel for the intervenor have cited and quoted at length from the decision of the United States Supreme Court in Security Mortgage Co. v. Powers, 278 U. S. 149 (49 S. Ct. 84, 73 L. Ed. 236) where a suit was filed after notice of attorney's fees as provided by the statutes had been duly given, and a judgment entered which included such fees. The question before the court was whether or not such fees could be allowed in a bankruptcy proceeding, where the petition in bankruptcy had been filed prior to the filing of the suit and the judgment upon the notes. The court neither allowed nor disallowed the fees, which had been rejected by the district court. The case was remanded for further findings of fact. The Mortgage Security Company case, and similar decisions by Federal courts relative to the payment of attorney's fees in bankruptcy cases arising under the Federal Bankruptcy Act, are not in point on their facts with the present case, and are not authority for a contrary ruling here.
Judgment affirmed. All the Justices concur.
1959
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