59 Ga. 25 | Ga. | 1877
This was a bill filed by Heard against the defendants, for an account of moneys received by Russell & Potter from him andexpended by them through Leech, Harrison & Eorwood, of Liverpool, England, in the purchase of cotton for him. The immediate purpose of the bill, it seems, was to enjoin Russell Potter from selling securities put in their hands by Heard as margin to cover losses in the purchase of futures in cotton. The main allegations in the bill were that they (Russell & Potter) had disobeyed the instructions of Lleard, after inducing him to cover’margins from time to time, amounting to some thirty-five thousand dollars, and that thus he had been damaged by them, and the prayer was for account, and relief, and injunction against selling the securities.
The bill waived discovery, but the defendants answered fully, putting in issue most of the allegations in the bill.
After the issues were made and testimony taken, 'the defendants, ' who had set up their account against Heard, and who claimed an indebtedness to them on a long account of purchases of 2000 bales of cótton and repurchases of future deliveries to cover losses from time to time, cablegrams and telegrams, and expenses of like character, asked, for an auditor.' The chancellor appointed an auditor over
When the auditor’s report was filed in the cleric’s office, no order was taken thereon, allowing the same or approving it, or giving time to except thereto, but exceptions were filed thereto by the complainant, mainly on the ground that the auditor transcended his powers, and reported an argument or conclusion on fraud and failure to follow instructions rather than, or in addition to, a statement of an account proper between the parties. These exceptions were filed in vacation, but the report was returned and filed in the clerk’s office, and no order taken thereon to show that it was returned in term.
At the next term thereafter, the case came on for a hearing, and the jury, under the charge of the court, brought in a verdict of upwards of six thousand dollars against Heard, as balance due Russell & Potter by him, for moneys paid by them to Leech, Harrison & Forwood. A motion was made by Heard for a new trial, on various grounds therein set out. It was overruled, and the complainant excepted. The question is, did the court err in refusing to grant a new trial on any of the grounds taken in the motion, and on which error is assigned here ?
The first ground is, that the court erred in the appointment of an auditor. Inasmuch as no assignment of error thereon was made on the original interlocutory bill of exceptions, the point was made that this could not be made a ground for the grant of a new trial, and error be assigned because the court refused the new trial on the error committed — if one was committed — at a prior term of the court. There was doubt on our minds about this point; but, on reflection, we do not see why the apjoointment of an auditor at a previous term should not be made a ground for a new trial, when his report was read in evidence, and may have controlled the verdict of the jury. The judge who appointed the auditor, though not the same individual who tried
The fact is, that the trial of a case may be said, with propriety, to embrace the entire proceedings, from its first footing in the court to the final exit therefrom with judgment; and the motion for a new trial may well embrace every act of the court, from inception to verdict, if excepted to at the time the error was committed, or alleged to be, and spread on the record for certainty that it occurred as alleged in the motion for new trial.
This bill does involve accounts and long accounts between these parties. Its prayer, among other prayers, is for general account. It was, therefore, in the discretion of the court to appoint an auditor in this case against the wishes and assent of either party. The act of 1871 fully embraces such a case. It is true that this court held in Yanduzer’s case, in 37 Ga. 299, that an auditor could not be appointed except on consent of parties, but the act of 1871 — see Code § 3139 and acts of 1871-2, page 54 — embraces cases of account, and enables the court to appoint an auditor with or
Section 4203 is imperative in respect to the mode of trial. It declares that “ the exceptions shall lye the onVy issues of fact submitted to the jury, and the jury shall return a verdict on each exception seriabimP
Upon what ground the whole body of complainant’s exceptions was dismissed, the record does not disclose. It must have been because not filed in time, or filed in vacation, we suppose. No time had been fixed for exceptions to be filed by any order disclosed in the record, as should have been done — see Code, §4203 — and none being prescribed, as the exceptions were filed in the clei-k’s office some time before the trial term, we think that they were in time. Nor are we aware of any law, or practice, which requires the exceptions to be filed in term only. Usually, so far as the practice has come under our observation, when the report is made, the court orders it filed for inspection of parties, and in the order prescribes a certain time in which exceptions thereto may be made and filed by either party; and this seems to us the better, if not the necessary practice as indicated in section 4203 of the Code. As no time was fixed, and no order made requiring the parties to except in term or vacation, and what time in vacation, we do not think that it was right to dismiss all the exceptions for either of these reasons.
On examining the exceptions, while some are exceptions of law and others of fact, it must be confessed that they are much intermixed; yet, we think that there are some naked (questions of fact made by the exceptions, which the jury ought to have passed upon. The proper course to be pursued by the judge, we think, was to have decided himself the questions of law made by the report, and to have eliminated from it any errors found in the report suggested by those exceptions ; and then to have submitted the exceptions of fact to the jury — -to be passed upon by that body, and a
On the trial before the jury, as has been often held by this court, and as the Code expressly provides, the report on the facts — the finding on them by the auditor — is prima facie evidence on the trial of the exceptions before the jury; but the entire report on law and fact, including the argument of the auditor on legal questions, while proper for the consideration of the court on the legal exceptions, of which he alone judges, is not evidence for the jury, and should not have gone to them — especially as the trial was a general one, and not on the exceptions. See Code, §4203, and 47 Ga., 414-434 ; 655 Ga., 28; 57 Ga., 142.
In construing this act we must look at the old law, the
Of course, as by consent formerly the powers of the auditor could be restricted to the mere calculation of arithmetic, if it pleased the parties, so now the same can be done by the court under the act of 1871. In this case the order is quite general, but we think that its true intent was to invest the auditor with the power to investigate and state the account, and ascertain the facts necessary to that work, and to go no further.
¥e approve this ruling of the court. If one party introduce part of a letter or other writing, the other may use
Whilst if fully and fairly tried, the verdict of the jury in this case may be the same as rendered on this trial, yet, inasmuch as the case has not been tried according to law in our judgment, and the court committed error in respect to the auditor’s report, and in charging that Heard was bound by it, and in not allowing the issues of fact made in the exceptions to that report to be passed upon seriatim, and in admitting the whole report to go to the jury as evidence in a case not tried on the exceptions to it, we reverse the judgment, and grant the complainant a new trial.
Judgment reversed.