124 Ga. 165 | Ga. | 1905
(After stating the facts.) This case was referred to an auditor. To his report the defendant filed nineteen exceptions of law and seven exceptions of fact. The plaintiff was also dissatisfied, but contented itself with nine exceptions of law and one of fact. The defendant filed a bill of exceptions, and the plaintiff filed a cross-bill. The record brought up by the main bill of exceptions contained six hundred and seventy-three typewritten pages. In view of the size of the record and the number of the exceptions taken by the parties, it might be said that, relatively to the result of the trial, both were in a state of elaborate dissatisfaction.
Perhaps the auditor may have intended to find a continuing charge against the defendant at a given rate up to the time of the decree. His actual finding on this subject was in the following language: “The auditor finds that defendant is liable to the plaintiff for the rent of said property from September 5th, 1899, to March 1, 1901, at the rate of $500.00 per month, and that the amount due plaintiff by defendant March 1, 1901, was $9,000.00, and that he is liable to plaintiff for the rent of said property since said date at the same rate, to wit, $500.00 per month.” As already stated, this report was filed November 21, 1903. The auditor left the court to ascertain something in addition to his report. The finding of additional facts or amounts and increasing or diminishing the amounts found by the auditor is not strictly a part of the proceeding of passing on the auditor’s report and entering a decree upon it. Something more was contemplated, we think, something
.The plaintiff claims that it should have an opportunity to plead any set-off or counter-claim which it may have against the foreclosure of the mortgage, and not have its rights relatively to the mortgagee fixed in the absence of the latter. This complaint, however, is in direct conflict with the plaintiff’s own allegations and prayers. In the petition it was said, "Your petitioner is ready to do equity, . . and offers to take said property charged with the debt which he has placed thereon.” The plaintiff prayed, "that said defendant be decreed to execute to your petitioner good and suffi
None of the other exceptions which were in proper shape to be considered present any ground for reversal.
Judgment on each lili of exceptions reversed in part and affirmed in part. Let the defendant in error in each case pay the costs therein.