Opinion
14146.
MAY 27, 1942. REHEARING DENIED JUNE 15, 1942.
Equitable petition. Before Judge Pratt. Banks superior court. February 2, 1942.
Hamilton Kimzey, Frank Jackson Adams Jr., and Herbert B. Kimzey, for plaintiff in error. J. B. G. Logan, contra.
1. Questions not made in the record can not be considered by this court, although argued and insisted on.
2. Where the grantor in a security deed intervened in a receivership proceeding, seeking to enjoin the receiver of the estate of the deceased grantee from proceeding with a sale of the property under the security deed, and the sworn pleadings presented an issue of fact as to the truth of the petitioner's allegation that the secured indebtedness had been paid, and there was no aliunde evidence showing such payment, this court will not control the discretion of the judge in denying an interlocutory injunction.
No. 14146. MAY 27, 1942. REHEARING DENIED JUNE 15, 1942.
Mrs. J. T. Pritchett filed an intervention in receivership proceedings wherein John Payne had been appointed receiver for the estate of P. F. M. Furr, deceased, seeking to enjoin the receiver from selling described realty, and for certain other equitable relief. The sale was being advertised for the purpose of foreclosing a deed containing a power of sale, dated August 10, 1932, given by the intervenor to P. F. M. Furr, now deceased, for the purpose of securing a stated indebtedness of $250. The intervention contained the following allegations: The property is being advertised for sale by the receiver pursuant to the terms of the power of sale contained in the security deed. The indebtedness secured by that deed has been fully paid. On or about the ____ day of ____, 1933 or 1934, P. F. M. Furr executed and delivered to petitioner (intervenor) a check for $160. Furr boarded with petitioner in 1932, 1933, and 1934, agreeing to pay therefor $8 per month. In 1933 or 1934 Furr came to petitioner and stated that he wished to settle the notes, and petitioner surrendered the $160 check to him "and credited his account with the balance due on said notes," Furr agreeing to go to the Cornelia Bank and get the notes, mark them paid, and forward them to petitioner. She thereafter asked Furr to deliver the notes to her, but was told that they had been lost or destroyed. Furr promised to cancel the notes and forward them to her if he found them among his other papers. After Furr's death petitioner's husband went to the executor of the deceased and demanded the notes, but was told that they could not be found. She had no notice of the proposed sale until the advertisement thereof had begun. The estate of P. F. M. Furr is insolvent, and petitioner is without remedy at common law. The prayers were, that the receiver be enjoined from selling the land; for cancellation of the notes and security deed; and for general relief. By an amendment the intervenor alleged that P. F. M. Furr was indebted to her $8 per month from September, 1932, until the end of 1934, with interest at the rate of seven per cent., which sum was due and unpaid; and she prayed that she have judgment against his estate for the amount due her after crediting the amount due on the notes. The intervention and the amendment were positively sworn to by her.
The receiver in his answer denied that the indebtedness had been paid. He alleged that for want of information he could neither admit nor deny the allegations of the petition with reference to the transactions with the deceased upon which the intervenor based her assertion that the indebtedness had been fully satisfied. He alleged, that at the time of the death of P. F. M. Furr the notes and security deed were held by a creditor of the deceased as collateral security for an indebtedness which was liquidated and settled by his executor after his death; that the creditor turned the notes and security deed over to the executor; and that after defendant's appointment as receiver they were turned over to him.
Upon interlocutory hearing witnesses for the intervenor testified, that P. F. M. Furr boarded with her in 1932, 1933, and 1934; that $8 a month was a very reasonable charge for such board; but that they did not know whether the board had been paid. Two witnesses testified that they talked with Mr. Furr, one in 1934 and the other in 1935, and that he told them that he had deeded the property in question to the intervenor. The receiver introduced evidence to show that the notes and security deed were held as collatral security by a creditor of Furr at the time of his death; that this indebtedness of the deceased was settled by his executor; and that the notes and security deed were turned over to the executor, who in turn placed them in the possession of the receiver. The intervenor introduced her sworn pleadings in evidence, and the defendant put in evidence the notes and security deed in question. In an order reciting that the evidence was insufficient to support the allegations of the petition, the judge dissolved the temporary restraining order previously granted, denied an interlocutory injunction, and ordered the receiver to proceed with the sale after readvertising. The intervenor excepted.
1. Questions not made in the record can not be considered by this court, although argued and insisted on. Counsel for the plaintiff in error, in their briefs filed in this court, question the right of the defendant receiver to proceed with the sale, upon several grounds. However, the record discloses that neither by the pleadings nor by the evidence was any one of these questions raised in the lower court. It is settled by numerous decisions of this court that such questions can not be raised for the first time here. Sanders Manufacturing Co. v. Dollar Savings Bank, 110 Ga. 559 (3) ( 35 S.E. 777); Hood v. Griffin, 113 Ga. 190 ( 38 S.E. 409); Denny v. Broadway National Bank, 118 Ga. 221 (3) ( 44 S.E. 982); Heyward v. Hatfield, 182 Ga. 373 (2) ( 185 S.E. 519); Clarke v. Millen, 187 Ga. 185 (4) ( 200 S.E. 698).
2. Under the sworn pleadings in this case the issue raised was whether or not, by certain transactions with the deceased grantee in the security deed, the intervenor (the grantor) had satisfied the indebtedness which the deed secured. The receiver of the estate of the deceased grantee denied that the indebtedness had been paid, and alleged that for want of information he could neither admit nor deny the allegations with reference to the alleged transactions had with the deceased grantee. This answer was sufficient to raise an issue as to the truth of the intervenor's allegations, because the transactions referred to were not such as would necessarily come within the knowledge of the receiver. Outside of her sworn pleadings, the evidence upon the hearing was clearly insufficient to support the intervenor's contentions that the indebtedness had been paid. While witnesses testified that the grantee boarded with intervenor as she contended, there was nothing to show that his board was not paid. Two witnesses testified that the grantee told them that he had deeded the place to the intervenor, but she does not contend that he executed a deed to her. This court will not control the discretion of the judge in denying an interlocutory injunction where the only evidence for the petitioner on the disputed issues of fact raised by the pleadings consists of her sworn petition. Davis v. Griswell, 179 Ga. 342 ( 175 S.E. 909); Spivey v. Pope, 180 Ga. 609 ( 180 S.E. 118); Simon v. Simon, 185 Ga. 385 ( 195 S.E. 430). Thus in this case, whether or not the allegations with reference to transactions with the deceased grantee could properly be considered by the judge, they did not demand a grant of the relief sought.
The order of the judge does not show, as contended by the plaintiff in error, that the judge failed to exercise a proper discretion in denying the injunction. After stating that he had carefully considered the complaint and the evidence adduced on the hearing, his order recited: "The evidence being insufficient to support the allegations of the petition, it is thereupon considered, ordered and adjudged that the injunction prayed for be and the same is denied as prayed." It is contended that the quoted language shows that the judge was of the erroneous opinion that the sworn allegations of the petition could not be considered as evidence in support thereof. Where it clearly appears from the order that the judge failed to exercise any discretion whatever in refusing an interlocutory injunction, or placed his refusal upon an erroneous ruling of law, the judgment is erroneous and will be reversed ( Marion County v. McCorkle, 187 Ga. 312 (2), 200 S.E. 285); but the failure of the judge to properly exercise the discretion vested in him by law must clearly appear from the language of the order. The portion of the order under attack appears to be no more than a finding of the judge on the issues of fact, based upon which he denied an injunction.
Judgment affirmed. All the Justices concur.