170 Ga. 261 | Ga. | 1930
When this case was before this court on a former occasion, the judgment of the trial court directing a verdict for the plaintiffs was reversed. Henderson v. Lott, 163 Ga. 326 (136 S. E. 403). When the case was ¡returned to the trial court the judge, on motion of plaintiffs, granted an order referring the case to an. auditor, to which the defendants excepted pendente lite. 'When the auditor filed his report the defendants filed a motion to recommit the case to him. This motion was overruled. The defendants filed exceptions of law and of fact to the auditor’s report. The judge disapproved the exceptions of fact, overruled the exceptions o£ law, and entered a final decree in favor of the plaintiffs, to which the defendants excepted. Error is assigned upon the final decree, and upon the rulings before stated.
"The duties heretofore performed by a master in the superior court shall be performed by an auditor; and in term time or vacation, upon application of either party, after notice to the opposite party, the judge of the superior court, in equitable proceedings if the case shall require it, may refer any part of the facts to an auditor to investigate and report the result to the court; Provided, however, that said judge may, upon his own motion, when in his judgment the facts and circumstances of any such case require it, refer the same to an auditor.” Civil Code (1910), § 5127. The case was in equity. The entire case was for trial in the light of the decision of the Supreme Court, but without any direction restricting the issues. The order for appointment of an auditor states that it appears “that a reference of said cause shall be had for the taking- of evidence touching the matters in issue as raised by the petition and all amendments thereto, the answers and all amendments thereto, and interventions and all amendments thereto; said cause involving many complicated questions of fact and law and various accountings.” Error was assigned upon the order “as being contrary to law,” for that, under the decision of the Supreme Court in this case, “there were no issues left in the case to be tried except the issue of fraud and of the mental incapacity of Mrs. Lucinda Lott, and that said case was not one' involving an accounting between the parties at issue, and was not such a case as should be referred to an auditor.” Considering the nature of tlie case as indicated by the pleadings, the judge did not err in referring the case to an auditor.
3. In all law cases where an auditor is appointed, exceptions of fact to his report shall be passed upon by the jury as in other issues of fact, and in equity cases by the jury when approved by the judge. Civil Code, § 5141. Under this law, in equitjr cases submitted to an auditor to whose report exceptions of law and fact are filed, the trial judge can, in his discretion, decline to submit exceptions of fact to a jury, unless he approves them. Mathewson v. Reed, 149 Ga. 217 (2) (99 S. E. 854); Upmago Lumber Co. v. Monroe, 151 Ga. 801 (2) (108 S. E. 369); Wiley v. Sparta, 154 Ga. 1, 23 (114 S. E. 45, 25 A. L. R. 1342). And where the evidence, though conflicting, supports the finding of the auditor, it is not an abuse of discretion to disapprove the exceptions of fact (Peyton v. McMillan, 145 Ga. 179 (7), 88 S. E. 937); but if the evidence does not support the report of the auditor, it would be an abuse of discretion or error to disapprove the exceptions.
The rulings of the auditor on admissibility of evidence, as complained of in exceptions of law numbered 10, 11, 12, 13, and 14, do not show that the grounds of objections to the evidence were meritorious; and consequently the judgment overruling those exceptions of law is not erroneous.
Upon examination of all other exceptions of fact and the evidence set forth as relating to the matter excepted to, it appears that the evidence, though conflicting, was sufficient to support the findings of the auditor; and therefore there was no abuse of discretion by the trial judge in disapproving and overruling such exceptions of fact.
The exceptions of fact dealt with in division 5, supra, and held therein to have been erroneously disapproved, related to findings of fact which necessarily entered into all exceptions of law except those which have been specifically dealt with in division 4 of this opinion. It can not be said that the auditor would have found as complained of in said exceptions of law, unless the evi
Judgment reversed.