(After stating the foregoing facts.) A motion was made by the defendants in error to dismiss the bill of exceptions on
1. The receiver was, indeed, an officer of court, but he was appointed for the express purpose of representing not only the defunct bank, but also all of its creditors and stockholders. It was within the discretion of the court to permit its receiver to be sued. Weslosky v. Quarterman, 123 Ga. 312. When he was called on, by order of the court, to show cause why the prayers of the petition filed by the plaintiff bank should not be granted, he became a party defendant to the action, and it was his duty to defend it in behalf of all those of whom he was the duly appointed representative. Not only did he have a right to present his defense, but the very purpose of bringing him before the court as a party defendant was that he might urge any defensive matter to the suit which the creditors or other persons interested in the proper administration of the affairs of the defunct bank could urge if themselves made parties defendant. Unless life represented them in the litigation, it would be necessary to bring all of them before the court; else any judgment rendered therein would not conclude or be binding upon them. It was through the receiver that these interested parties had to resist the granting of the relief sought by the plaintiff; and the judgment being adverse to him, it was his right and duty, as their representative, to except thereto, if he or any of them was not satisfied therewith. Their right of review by the Supreme Court was certainly not cut off merely because he was an officer of court and was, under ordinary circumstances, subject to its orders without question.
2. That the evidence introduced on the hearing in the court below is not properly brought to this court, and for that reason can not be considered, affords no cause for dismissing the writ of error. Southern Mining Co. v. Brown, 107 Ga. 264; Pullen v. State, 116 Ga. 555. The case" is to be retained in court, in order that such
3. The present bill of exceptions specifically assigns error on the ■overruling of a demurrer interposed by the receiver to the plaintiff’s petition. The record embraces the demurrer and discloses what objections were therein urged against the petition; so the complaint in the bill of exceptions that the court erroneously overruled the demurrer furnishes a legally sufficient assignment of error. Johnson v. Porter, 115 Ga. 401, 403.
4. It is unnecessary to enter into a discussion of the question whether or not the petition filed in this case is such as can technically be termed a bill of peace, as it is styled in the bill of exceptions. We have long since departed from the forms and niceties of equitable pleading which were once in vogue. Taking the allegations of the petition as true, the proposed termination of the pending litigation, to which neither the receiver of the bank nor its creditors and stockholders had been made parties, will prove advantageous and beneficial to all persons concerned in a prop>er administration of the affairs of the Bank of Warrenton. The plaintiff is one of its creditors, and seeks authority of the court which has assumed exclusive jurisdiction in winding up the affairs of the defunct Bank of Warrenton to make a settlement of a valid and just claim against it. The relief sought will not prejudice the rights of any other creditor or any stockholder of that bank. It is hardly to be doubted tha¡t the receiver would be permitted to make such a settlement, if, upon proper application to the court for leave to do so, the judge, having all parties at interest before the court, should deem the settlement expedient and to the common advantage of all. A creditor of the bank might with equal propriety apply to the court for permission to settle a claim against the receiver, if the former could in this way bring to the attention of the court a feasible plan for properly administering the affairs of the defunct bank, then before the court for direction and adjustment through its receiver.
Judgment affirmed.