Battle v. Royster Guano Co.

Buck, P.' J.

(After stating the foregoing facts.) It affirmatively appears in this case that an injunction had already been granted in a prior case pending in the same court, at the suit of the plain*125tiff in the present action, 3?. S. Royster Guano Company, for substantially the same cause of action, restraining Mrs. Battle from encumbering or alienating any of her property; which order preventing the alienating or encumbering of any of Mrs Battle’s property included the land involved in the instant case. In the present case the Guano Company petitioned for and obtained in the same court another injunction against Mrs. Battle, and also obtained the appointment of a receiver for her property. As previously pointed out, in the first suit an injunction had been obtained by the plaintiff in the court below, the defendant in error here, restraining and enjoining Mrs. Battle from alienating, or encumbering any of her property. The present action is directed against the Fourth National Bank as a codefendant ’ with Mrs. Battle. Can this have the effect of supporting the action against the latter ? It the court had found, under the facts alleged, that the plaintiff in the suit was entitled to its injunction against the bank and the other relief against that bank, which was denied, a different question would have been raised from what is presented now. But when the prayers of the petition against the bank were denied, then there was no further occasion for retaining this action against Mrs. Battle, in view of .the relief sought and granted in the first action; and the court erred in granting the prayers for injunction and receiver against Mrs. Battle. The plaintiff in the court below had no lien on any -of the property nor any interest or right in any portion thereof, and the injunction which had been granted in the previous suit fully protected it in its rights; for after having recovered a judgment, if it should recover one, it could levy upon the property. Moreover, to allow this receivership to stand as to the land which was conveyed to the bank to secure the debt held by it would be indirectly defeating the bank in its attempt to enforce its claim, though refusing by the direct remedy of injunction to prevent the bank from exercising the power of sale given in the deed from Mrs. Battle to that corporation. If as a matter of fact in this case Mrs. Battle has for any purpose turned over to the bank an amount of assets exceeding in value the real claims of the bank against her, the plaintiff in this case can, by plain common-law remedy, that is, by garnishment, subject to its demands the excess of the amount of funds or property in the hands of the bank over its just demands. We think *126for these reasons that in no view of the case, after the refusal of the equitable relief directly sought against the bank, was the plaintiff entitled to the remedy and relief additional to the full and comprehensive relief granted it in the former suit filed in June.

It is unnecessary to quote lengthy extracts from authorities supporting the views set forth above and upon which our judgment is based. It is not improper, however, to cite in this connection the following: Civil Code (1910), § 5495; McWilliams-Rankin Co. v. Thompson, 135 Ga. 424 (69 S. E. 554); Virginia-Carolina Chemical Co. v. Provident Savings Life Assurance Society, 126 Ga. SO (54 S. E. 929); Spence v. Solomons Co., 129 Ga. 31 (58 S. E. 463); Guilmartin v. Ry. Co., 101 Ga. 565 (29 S. E. 189); Stuard Lumber Co. v. Taylor, 150 Ga. 135 (102 S. E. 894); Colonial Trust Co. v. Central Trust Co., 243 Pa. 268 (90 Atl. 189); Magniac v. Thompson, 15 How. (56 H. S.) 299 (14 L. ed. 696); Booth v. Mohr, 122 Ga. 333 (50 S. E. 173).

Judgment reversed.

All the Justices concur, except Fish, G. J., absent because of sickness.