
    Fidelity Produce Company v. Perdue.
    July 13, 1910.
    Equitable petition. Before Judge Felton. Bibb superior court.
    May 3, 1909.
   Beck, J.

1. Where, in equitable proceedings to obtain injunctive relief and the appointment of a receiver to take charge of funds which had been set apart to the bankrupt under his claim of homestead, and for a judgment in rem against the same, the petitioner asserted the right to subject the funds to his demand on the ground that the notes which were the basis of the same contained a waiver of homestead, and the debtor, against whom the proceedings were instituted, in his answer set up that another creditor held a mortgage which constituted a lien upon the funds in question, the mortgage being for a greater amount than the funds involved in the controversy; and where the lienholder filed an intervention setting up the fact of the existence of the lien by mortgage in his favor, and the priority of the lien thus set up was not disputed, as appears from the pleadings and evidence in the (case, a denial of a judgment in rem (that is, to subject the funds to the demand of the petitioner), and of the injunctive relief and the receivership, necessarily resulted, although in his intervention the lienholder did not pray for a decree subjecting the funds to his lien, or for other affirmative equitable relief. Collins v. Myers, 68 Ga. 530; Barnwell v. Wofford, 67 Ga. 50; Atlanta Brewing Co. v. Bluthenthal, 101 Ga. 541 (28 S. E. 1003).

2. The intervention, having been filed before the hearing and allowed by the court, was properly before the court for consideration, although not formally served upon the petitioner, the latter having notice thereof upon the hearing and making no motion for a continuance or a postponement in order to procure evidence with which to contest the allegations of the intervention. Judgment affirmed.

All the Justices concur.

R. S. Wimberly and T. E. Ryals, for plaintiff.

John R. L. Smith, contra.  