1. Suit on three certain notes containing homestead waivers was returnable to the September term, 1925, of Gwinnett superior court. An amendment, seeking equitable relief was filed by the plaintiff in March, 1926. A temporary restraining order was granted and a rule nisi issued, calling upon the defendant to show cause, on April 20, 1926,' why a *490receiver should not be appointed and an injunction granted as prayed. This application came on for hearing on April 26, 1926. The bill of exceptions was certified on May 21, 1926. Held: The bill of exceptions being brought in part to review a judgment final in its nature, rendered upon a hearing of an application for receiver and injunction, and there being no exception to any judgment appointing a receiver or granting an interlocutory injunction, the bill of exceptions should not be dismissed because it was not certified within twenty days from the date of the judgment complained of. .
No. 5475. January 12, 1927.2. The court did not err in refusing to strike the amendment to the petition. It did not set forth a new cause of action. Its purpose was to enforce payment of the notes containing waivers of homestead, out of property claimed as exempt by the bankrupt. Under the Civil Code (1910), § 5407, the plaintiff in a common-law suit can amend by seeking equitable relief in a proper case. Such ease was set out in the amendment.
3. The court did not err in allowing the intervention of the Loganville Mercantile Co., after the original petition of the plaintiff had been amended and the cause converted into an equitable action. In view of the amendment the allowance of the intervention was proper.
4. Exception to so much of the judgment of the trial judge as awarded the property involved in this litigation to the intervenor, and directing the receiver to turn it over to such intervenor, is well taken. The trial judge was without jurisdiction, in vacation, to render such judgment finally disposing of the property in controversy by taking it from the defendant and directing the receiver to turn it over to the intervenor. Charleston & Western Carolina Ry. Co. v. Wooten, 139 Ga. 489 (77 S. E. 572); Chason v. O’Neal, 158 Ga. 725 (7), 726 (124 S. E. 519). Judgment reversed.
All the Justices concur. John I. Kelley, for plaintiff in error. W. L. Nix and I. L. Oakes, contra.