95 Ga. App. 710 | Ga. Ct. App. | 1957
Under the statement of facts and rulings contained in the decision of the Supreme Court in transferring this case to this court (Douglas-Guardian Warehouse Corp. v. Todd, 212, Gra. 791, 96 S. E. 2d 275), this court has no recourse but to hold that the judgment overruling and striking the plaintiff’s exceptions of law and fact to the report of the auditor and entering judgment in favor of the defendants was error. “In all law cases where an auditor is appointed, exceptions of fact to his report shall be passed upon by the jury as in other issues of fact, and in equity cases by the jury when approved by the judge.” Code § 10-402. This section has been construed to mean that all proper exceptions of fact to a report of an auditor in law cases must, as a matter of constitutional right, be referred to a jury. Green & Sutton v. Valdosta Guano Co., 121 Ga. 131, 134 (48 S. E. 984); Weed v. Gainesville, Jefferson &c. R. Co., 119 Ga. 576 (46 S. E. 885).
Judgment reversed.