30 S.E.2d 617 | Ga. | 1944
The judge did not err in approving the findings of law as made by the auditor, and in directing a verdict in accordance with his findings of fact which were demanded by the evidence.
2. Under the positive and undisputed evidence, lacking in the first trial of the claim case, but supplied in the second trial of the claim and supporting equitable intervention (see Glenn
v. Tankersley, *818
3. The evidence is undisputed that the grantor's obligation under the bond subsisted at the time the voluntary conveyance was made. Whether or not the obligation could be taken as having attached upon the signing, delivery, and acceptance of the bond (see Stearns on Suretyship, 4th ed., §§ 129, 130; 11 C. J. S. 428, § 51), it is not disputed that the default of the guardian occurred before the conveyance, and the liability for such breach must have thereupon attached. The fact that liability forinterest on the obligation does not begin to run until a demand on the principle and his sureties and a request to pay has been shown (see Frink v. Southern Express Co.,
4. "A judgment of a court of competent jurisdiction shall be conclusive between the same parties and their privies as to all matters put in issue, or which under the rules of law might have been put in issue in the cause wherein the judgment was rendered, until such judgment shall be reversed or set aside." Code, § 110-501. Accordingly, the auditor did not err in sustaining the demurrer to the intervention, in so far as it again sought to set aside the judgment in the illegality case, which set up a discharge in bankruptcy of the obligation on the guardian's bond. The same is true as to the additional defense again sought to be pleaded, setting up a satisfaction of the obligation represented by the judgment, on account of the transfer of property by the defaulting guardian to the *819
present guardian. See Cone v. Eubanks,
(a) The attempt to set aside the judgment, because of the allegation that on the hearing of the illegality a "misstatement" of counsel for the plaintiff in fi. fa. was made as to how long before bankruptcy the judgment had been rendered, is wholly without merit. The record shows that the defendant in fi. fa. was present and litigated his affidavit of illegality. The facts involved were necessarily within the knowledge of the defendant in fi. fa. and then was the time to challenge such an alleged misrepresentation, and if not allowed to do so, to file exceptions in that proceeding. This he failed to do. See Felker
v. Johnson,
(b) That the auditor failed to make a finding sustaining the plea of res adjudicata, is not such an omission as to militate against the rights of the defendants. His findings were in accordance with law, and will not be set aside because an additional judgment adverse to the plaintiffs in error was not entered. If they desired and were entitled to a specific ruling on the plea, their remedy was to ask that the case be recommitted. "Exceptions should go to what the auditor reported, not to what he did not report. . . If, indeed, the auditor's report was not full enough, the defendant should *820
have prayed the court for an order recommitting the report, so that the alleged omissions could have been supplied in the regular and legal manner." Collinsville Granite Co. v.Phillips,
5. "Exceptions as to any matter not appearing on the face of the record or brief of evidence, or in the report itself, shall be certified to be true by the auditor within 40 days after the report is filed; and if the auditor determines that such exception is not true, or does not contain all of the necessary facts, he shall return the same within 10 days to the party or his attorney with his objections in writing. If these objections, within 10 days, are met and removed, he may then certify the same, specifying the cause of delay." Code, § 10-302. The exceptions in this case were not verified in any way by the auditor.
(a) "Exceptions to an auditor's report claiming error in rulings on the admission of evidence cannot be considered if it does not appear on the face of the record or brief of evidence or in the report itself what the evidence was. . . Recitals in exceptions not certified by the auditor to be true are insufficient." Eatonton Oil Co. v. Greene County,
Judgment affirmed. All the Justices concur.