179 Ga. 464 | Ga. | 1934
The Exchange National Bank of Fitzgerald filed its petition in equity against J. Lane McDonald, Myrtle McDonald Terrell, Harry L. McDonald et al., alleging that it was the holder and owner of certain promissory notes given by the defendants,
The defendants in error filed a motion to dismiss the writ of error, on two grounds. First, because the former Judge Daniel (the judge who certified the bill of exceptions) had no authority to entertain or certify the bill of exceptions after retirement from the judgeship, this being a fast bill of exceptions. There is no merit in this ground. The plaintiff was seeking a judgment on certain' notes of which it alleged itself to be the owner and holder;
The exception to the final judgment is set forth above. Under the law it is sufficiently clear and distinct. The exceptions to the findings of the auditor on questions of law and fact set forth the reasons upon which the plaintiff relied to have those exceptions set aside. The motion to recommit set forth the plaintiff’s reasons upon which it insists the case should be recommitted to the auditor. It is not necessary to repeat these reasons. The alleged errors in overruling the motion to recommit, and the exceptions to the findings of the auditor, if these rulings were erroneous, entered into the final judgment; and under the ruling in Lyndon v. Ga. Ry. & El. Co., 129 Ga. 353 (58 S. E. 1047), this was a sufficient assignment of error. The motion to dismiss is overruled.
We are of the opinion that the motion to recommit the case to the auditor should have been sustained. That motion contained a number of grounds, many of them clearly without merit. But more than once in the motion is set forth the ground that the auditor failed in his report to clearly and separately state all the rulings made by him, and failed to classify and state his findings and report his conclusions upon the law and the facts. We will not set forth in detail the findings of the auditor, but we call attention to parts of his report, from which it clearly appears that he did not comply with the law which requires him to clearly and separately state all rulings made by him, and classify and state his findings and report his conclusions upon the law and the facts. Under his classification as “findings of fact,” we find the following:
“It is the opinion of the auditor that the bank, plaintiff, in accepting the transfer of the contract between Dorminey and the Mc-Donalds, was subrogated fully to each and all of the rights, powers,
“The deed from Lang to the Federal Land Bank provided for yearly payments covering a period, of something like thirty-four years. Dorminey’s contract was quite different. He and the plaintiff bank, by way of subrogation, contracted to pay it off in five years, and created a penalty of loss of the property contracted for if they failed to pay same off in that time. The auditor must and does find that W. S. Lang exercised his right to retake possession of the property, and excluded plaintiff, the defendants, and all other persons.
“It is insisted by plaintiff that certain provisions in the contract with reference to heirs, executors, administrators, and assigns had a binding effect on the defendants, because said contract between Lang and Dorminey was of record. The auditor finds that this contention is not well founded. In the first place, Dorminey, for whose protection that provision was placed in his contract with Lang, had a right to waive its terms; and the auditor finds that when he entered into another and quite different contract as to its terms with the McDonalds, this amounted to a waiver of any benefit he had under the provision referred to. In the second place, Lang, for whose real protection this condition was placed in the contract, was the only man who had a right to claim that a subsequent purchaser was bound by such provisions. He exercised this right against both plaintiff and these defendants.
“Furthermore, the plaintiff failed entirely to prove any indebtedness due by the said A. B. C. Dorminey to the plaintiff. This was incumbent on the plaintiff, in the opinion of the auditor. Under the undisputed evidence for the plaintiff, A. B. C. Dorminey contracted with one W. S. Lang for the purchase of certain property described therein, and contracted as part of the consideration thereof to pay off a farm loan due with said Lang to the Federal Land Bank of Columbia, S. C. This was necessary for him to acquire title to the property, the subject-matter of this suit. And when he transferred to the plaintiff, under -the law of subrogation the plaintiff was subrogated to all of the rights, interest, and penalties assumed or undertaken by the said Dorminey, which created the relation of principal and surety. This auditor believes and concludes that the plaintiff, by not paying amount due Federal Land Bank as per contract of Dorminey, allowed Lang to re-enter and take
It is obvious from a reading of this part of the auditor’s report (and this is the larger part of it on questions of fact) that he did not clearly and separately state all rulings made by him, classify and state his findings, and report his conclusions upon the law and facts; but in this part of his “findings of fact” the auditor commingled and confused statements of fact and statements of law with argument of his own, part of which referred to both principles of law and facts found to be true or facts alleged. While there are several other “findings of fact,” this was by far the larger part of the findings.
In Southern Pine Co. v. Dickey, 136 Ga. 662 (71 S. E. 1110), it was said “that the report' of an auditor which failed to clearly and separately state all rulings made by him, classify and state his findings,’ or in which his findings commingled matters of fact, of law, of argument, and conclusions of law, was not in compliance with the provisions of the statute quoted, and should, upon motion of the party dissatisfied therewith, have been recommitted for the purpose of requiring the auditor to clearly and separately state all his rulings, and to classify them into findings of fact and findings of law, and after so doing to report his conclusions of the law and the facts to the court. . . There are good reasons for the requirement of the statute that all rulings made by the auditor should be clearly and separately stated, and that his findings of fact and of law should be separately classified. If the findings of an auditor should commingle matters of fact, of law, of argument, and conclusions of law, the party desiring to except to such findings in so far as they related to a fact or facts would, in a case at law, be placed at a disadvantage when the issue made by his exceptions to such findings was submitted to the jury, because the. whole finding in which law, fact, argument, and conclusions of law were commingled would have to be read to the jury, and in this way they
In view of what is said above, we do not deem it proper to pass upon any of the other assignments of error. After the report has been recommitted and another report made in accordance with the rulings we have announced, either party will be at liberty to take such exceptions thereto as are proper. This was the direction given in the case just cited, and we follow it here.
Judgment reversed.'