154 Ga. 25 | Ga. | 1922
R. C. Wiley and R. L. Merritt, as bond commissioners of the City of Sparta, brought their equitable petition against the First National Bank of Sparta (hereinafter referred to as the Sparta Bank), the Third National Bank of Atlanta (hereinafter
After examining the motion to recommit the case to the auditor for further and additional report, upon the grounds upon which the motion is based, we are of the opinion that the court did not err in denying the motion. The evidence set forth in this motion to recommit, to the introduction of which the defendants made objection, was not of such materiality that its admission is a cause for reversing the judgment for refusing the motion to recommit, except in one particular which we will notice later. As to this particular evidence, that is, the answer of Walker to a certain interrogatory, inasmuch as the auditor does not show whether this was admitted or rejected, we hold that it should be treated as having been admitted; and the effect of admitting this incompetent evidence will be dealt with in this opinion.
One of the findings of the auditor, classed under his findings of law, was that the Third National Bank of Atlanta illegally converted $9,000 worth of bonds, the property of the City of Sparta, and that the plaintiffs should have and recover of that bank $9,000, the par value of said bonds, together with-interest from January 1, 1918, at five per cent, per annum, and all future interest at the same per cent., until paid. The exception to this finding is that it
In addition to finding against the defendants the principal sum of $9,000, the value of the bonds alleged to have been converted, together with interest, the auditor further found in favor of the plaintiffs against the First National Bank of Sparta the sum of $4,000, shown at one time to have been on deposit to the credit of the City of Sparta bond commission. The evidence as to whether or not this had been paid out on checks of the bond commission was conflicting; and under the conflicting evidence it was a question of fact to be determined by the auditor whether the Sparta Bank had paid out this money upon the order of the bond commissioners, or was still indebted to the commission for that amount. But it appears from the motion made to recommit, that, in answer to certain questions propounded in the interrogatories, John D. Walker testified that upon one occasion he “ examined the sinking-fund account and found it debited with $4,000;” and that he, knowing it had not been drawn out, inquired of Mr. Morris, the assistant cashier of the Sparta Bank, as to how that item happened to be there, and was told by Morris that Holmes, who was vice-
We have examined the other exceptions to the findings of law and fact, and are of the opinion that the court’s ruling in regard to them was not error.
Objections by the defendants in error in the main bill of exceptions to the allowance of an amendment by one of the defendants in the court below, on the ground that it was offered too late, were without merit. The judgment of the court below is therefore affirmed on the main bill of exceptions in part, and reversed in part. It is reversed in so far as it adjudges the Third National Bank of Atlanta liable for $9,000, the value of the bonds, and in so far as it found that the plaintiffs should recover the item of $4,000 sued for, in addition to the value of the bonds.
Judgment affirmed in part and reversed in part on the main till of exceptions, and affirmed on the cross-till of exceptions.