125 Ga. 159 | Ga. | 1906
This is the second appearance of this case. Eor a statement of the case, reference is made to the opinion of Mr. Justice Candler when the case was here before. Griffin v. Collins, 122 Ga. 102. The judgment was there reversed for the reason that the judge erred in not submitting the exceptions of fact to a jury. The court declined to pass upon the assignments of error in the cross-bill of exceptions filed by the plaintiff at that stage of the case, and said that nothing in the opinion was intended “to preclude the plaintiff from urging the same points when the case is tried again.” At'the last trial the court submitted to the jury such of the exceptions of fact as were held to be sufficiently definite. The jury returned a verdict finding against the exceptions filed by the plaintiff and in favor of exceptions filed by the defendants. The plaintiff made a motion for a new trial, which was granted upon the ground that there was no evidence to authorize the finding as to eight of the exceptions of the defendants. The defendants filed a .bill of exceptions, assigning error upon the granting of the new trial and also upon the overruling of certain exceptions of law. The plaintiff filed a cross-bill of exceptions, assigning error upon the overruling of exceptions of law filed by him, upon the refusal to strike certain exceptions of the defendants, and upon the refusal to grant a new trial on all the grounds in the motion.
The ninth exception raises an objection.to an allowance by the auditor of a credit to the guardian resulting from compromises of certain notes which he had received from W. M. Lane’s estate. It seems that these notes were distributed to the heirs of W. M. Lane as cash and received by the guardian as cash, he charging himself with them as such. Subsequently an order of the ordinary was obtained, allowing the guardian to compromise these notes, and the ward also agreed that the compromise should be made. The auditor having found that the ward was mentally incapable of making a contract, the consent of the ward to the compromise goes for nothing. If the claims became insolvent or partially insolvent after the guardian received them, and from no fault of his, there seems to be no reason why he should not have been allowed to compromise the claims, and be charged only with the amount received by the compromise. The burden, under the circumstances, would be upon the administrator of the ward to show that the loss resulted from the mismanagement of the guardian. He would not be absolutely bound by having charged himself with the amount of the notes, if this charge was the result of a mistake. But he can not be properly charged with a less amount than the face of the notes, when it appears that the failure to collect the full amount due was owing to his fault.
The eleventh and thirteenth exceptions relate to what is-referred
The foregoing discussion disposes of all of the exceptions raising questions of law which were so framed that they can be properly dealt with in this court. We have not undertaken and will not undertake to decide any of the exceptions of fact. These exceptions cari be submitted to the jury at the next trial. If at that time the judge should be of the opinion that any of the exceptions of fact are entirely unsupported by evidence, of course he can direct a verdict on such exceptions. If the evidence is conflicting, the jury must be allowed to decide the issue. Under the view which we have taken of the exceptions of law filed by the plaintiff, a new accounting will have to be taken by the judge himself, or the matter be recommitted to the auditor. This is a matter for determination by the judge
Judgment, on main bill of exceptions, affirmedj on cross-bill, reversed.