161 Ga. 605 | Ga. | 1926
Horace Peacock filed an equitable petition in Fulton superior court, alleging that Liberty Marine Insurance Company, North Atlantic Insurance Company, and Jefferson Insurance Company were insolvent, that among the creditors were a number of policyholders in this State, and that said companies had on deposit with the State treasurer bonds worth thirty thousand dollars; and praying that a receiver be appointed to take charge of said bonds, and that there be an accounting and settlement with creditors. Previously a similar petition had been filed by Denny et al. in the superior court of Kichmond County, setting up substantially the same facts and praying for the same relief. These two cases were consolidated. Hewitt W. Chambers was appointed receiver, and took charge of the assets, including the aforesaid
Thereafter Barnes, Denny et al. filed a motion to recommit the case to the auditor, upon the grounds, that the auditor’s report does not refer to or include, by exhibit or otherwise, the oral and documentary evidence adduced in the cause, nor any brief of the same, and particularly the evidence had upon the trial in connection with his several findings in favor of Commercial Credit Co. against Barnes et al.; that the auditor did not make a ruling upon the general demurrer filed by Barnes et al., the only reference made by him to the same being, “The general demurrer was overruled by the undersigned, Aug. 12, 1924;” that the report of the auditor disposed of the plea in abatement interposed by defendants, by making a mixed and mingled statement as to what the law is and the facts are, and referred therein to information and documents not introduced in evidence or properly before the court, and the
There is in the bill of exceptions a reference to the filing of a demurrer to the petition for intervention, and the fact that the court overruled the demurrer; and in connection with the assignment of error on the overruling of the plea to the jurisdiction the bill of exceptions recites that the court overruled the general demurrer, and that error was assigned. By reference to the brief of plaintiff in error it is ascertained that plaintiffs in error concede that the exception to the overruling of the demurrer, if such is intended in the bill of exceptions, comes too late. This brief recites (referring to the report of the auditor) : “On page 3 he sought to dispose of defendant's general demurrer by reporting as follows: 'The general demurrer was overruled by the undersigned, August 13, 1934.’ It will be observed that, though he says that the general demurrer of defendants was overruled by him August 13th, he did not report it until November 38th, thus precluding defendants from excepting thereto. As the record shows, however, this demurrer was previously passed upon by the presiding judge, and exceptions
The controlling issues are decided in the headnotes.
Judgment affirmed.