6 S.E.2d 304 | Ga. | 1939
Lead Opinion
1. Where in a land-registration case an order and judgment overruling exceptions of law and of fact to an examiner's report, and decreeing registration in favor of the plaintiff, were reversed by this court upon the ground that the evidence did not support the examiner's report but demanded a finding in favor of the exceptions to such report, and no direction was given, it was error for the trial court, on the filing of the remittitur and revocation of the former decree in favor of the plaintiff, to enter a judgment decreeing registration in favor of the defendant, in whose favor no findings of fact had ever been made by an examiner.
2. The foregoing conclusion is not altered by the fact that neither party demanded a trial by jury upon any issue arising upon the exceptions to the examiner's report. The waiver of trial by jury did not authorize the judge to do more than pass upon the exceptions to the report of the examiner; and consequently his judgment, even if it might be considered as embracing findings of fact in favor of the defendant upon the evidence taken and reported by the examiner, was erroneous.
3. The sustaining of the exceptions to the examiner's report will require a recommitment to the same or a different examiner, for a de novo investigation and report in accordance with the statute.
4. The court did not err in disallowing the amendments offered by the plaintiff, after the remittitur from this court had been filed in the trial court but before any further proceedings were taken. The case was not open for amendment at the time and in the manner proposed.
Later the plaintiff offered two amendments, one before and the other after the remittitur was filed in the superior court, and invoked a ruling as to the allowance of both before the judgment of this court was made the judgment of the trial court. The first amendment averred the following: "Petitioner charges and alleges that the testimony of W. C. Lankford upon the hearing before the special examiner in this case, and upon which the judgment of this court was reversed, in connection with the allegation of usury in the security deed executed by W. C. Lankford to B. H. *508 Tanner on the 7th day of November, 1919, . . was false, fraudulent, and perjured. The witness by whom this fact is to be proven is E. L. Tanner, a resident of Douglas, Coffee County, Georgia, the son of B. H. Tanner, the grantee in deed to secure debt in this case. . . Said witness is one of the most reputable and responsible citizens in the county in which he lives, some of whom are S. M. McCranie, mayor of the City of Douglas, Reverend Goldfinch, pastor of the Baptist Church at Douglas, Georgia, Mr. Shannon, cashier and vice-president of the Coffee County Bank. (b) Petitioner further alleges that at the time of the above-mentioned hearing at which W. C. Lankford testified that there was usury in the original transaction between him and B. H. Tanner, . . this petitioner did not know of any direct testimony to rebut the testimony of W. C. Lankford, B. H. Tanner being then dead, and at that time had only circumstantial or indirect evidence to the effect that the testimony of the said W. C. Lankford in connection with said transaction was false, fraudulent, and perjured, but that since the hearing on April 23 and April 24, 1937, at which time, as aforestated, W. C. Lankford testified before the special examiner in the above-stated manner . . your petitioner has obtained knowledge of evidence from a direct witness to the transaction between B. H. Tanner and W. C. Lankford, who will testify that B. H. Tanner did not receive any premium whatsoever for the loan of fifteen thousand dollars made by B. H. Tanner to W. C. Lankford, but that on the contrary this witness will testify that of his own knowledge B. H. Tanner made the loan to W. C. Lankford without any premium whatsoever and without any charge save and except the lawful interest thereon." Other paragraphs alleged that certain deeds in the chain of the defendant's title were void, because made to hinder and defraud creditors. No affidavit of E. L. Tanner was attached to this amendment, but it was stated in an affidavit of E. L. Grantham "that he knows E. L. Tanner, and that E. L. Tanner has lived in and around Douglas, Georgia, all his life . . that E. L. Tanner is now engaged in the undertaking business, and has been engaged in various lines of business in and around Douglas in an active way for approximately the past thirty years." Petitioner prayed that "this case be recommitted to the special examiner for hearing the additional and newly discovered evidence of this petitioner, *509 . . and that said amendments be allowed, filed, and made a part of the record in this case." The second amendment contained allegations regarding a written contract made in 1923, which the plaintiff formerly thought had been burned, and under which it was contended the defendants would be estopped to claim usury, and averring that material false statements had been made by W. C. Lankford and Mrs. Lankford. This amendment concluded as follows: "The allegations herein are expected to be proved by written contract signed by the applicant, Mrs. Rilza T. Holton, by the defendant, Mrs. Mattie L. Lankford and W. C. Lankford, duly witnessed and notarized; a copy of which is hereto annexed. Wherefore it is prayed that this amendment be allowed, ordered filed, and made a part of the record in this case; and that the case be recommitted to the special examiner for rehearing, and particularly for hearing additional testimony on the newly discovered evidence alleged herein, and in the amendment heretofore filed."
On consideration of these amendments, the judge passed the following order: "The foregoing amendments, disallowed. This Jan. 24, 1939." A decree was then entered, reviewing the history of the case, and stating that "the several judgments, orders, and decrees of said court entered in said cause having been reversed by the Supreme Court of Georgia, and Supreme Court having held that under the facts as found and reported by the examiner and approved by the court the defendant, Mrs. Mattie L. Lankford, and intervening defendants named above are entitled to decrees registering title to said tracts of land in them as their respective interests appear, it is therefore found, considered, ordered, and adjudged" that the decrees of registration theretofore entered be canceled and that title to the land be decreed in accordance with the decision of the Supreme Court. The plaintiff and those claiming under her sued out a bill of exceptions, assigning error on the disallowance of the amendments and on the final decree in favor of the defendants. Mrs. Rilza T. Holton filed an application for registration of title to land. Mrs. Mattie L. Lankford filed defenses, *510 and a cross-petition praying for registration of the land in her own name. Other persons intervened on both sides. For convenience, Mrs. Holton together with those who intervened on her side may sometimes be referred to herein merely as theplaintiff. Mrs. Lankford and the intervening defendants may in like manner be designated in the singular, as the defendant. The examiner made a report containing findings of law and of fact in favor of the plaintiff. The defendant filed exceptions of law and of fact to these findings. Neither party demanded a trial by jury upon any issue of fact arising upon the exceptions to the examiner's report. The judge of the superior court overruled the exceptions, approved the report, and entered a decree in favor of the plaintiff. The defendant excepted to the adverse rulings on the exceptions to the report of the examiner, and to the final decree. This court reversed the judgment, holding that under the evidence the plaintiff was not entitled to have the land registered in her name, but that the defendant was entitled to registration of her claim, as prayed in her cross-petition, and that the court erred in overruling the exceptions of the defendant to the report of the examiner, and in entering final decree in favor of the plaintiff. Lankford v. Holton, supra. The judgment of this court was that the judgment of the trial court "be reversed, because the court erred in overruling the exceptions of the defendants to the report of the examiner, and in decreeing in favor of the petitioner and the intervenors." No direction was given. Before the remittitur was filed in the superior court, the plaintiff offered one of the amendments referred to in the preceding statement. After the remittitur was filed, the plaintiff offered the other amendment, each including a prayer to recommit. Later, but before any judgment was entered on the remittitur, rulings were invoked as to allowance of the amendments, and they were both disallowed and stricken. Next, the court entered an order making the judgment of the Supreme Court the judgment of the superior court, and then, without further proceedings, rendered a judgment canceling or revoking the previous decree registering the land in the name of the plaintiff and decreeing registration in favor of the defendant. To the orders disallowing the amendments and to the subsequent decree the plaintiff excepted.
The following provisions of the land-registration act (Ga. L. 1917, pp. 108 et seq.; Code, title 60) are pertinent: *511
"The judge of the superior court of each judicial circuit in this State shall appoint at least one master, or auditor, who shall be known as the examiner, and who shall discharge the duties provided herein for the examiner, but whose relation and accountability to the court shall be that of auditor or master in the general practice existing in this State." Act, § 15; Code, § 60-301. "Upon the filing of a petition, as provided in this act, the clerk shall at once notify the judge, who shall refer the cause to one of the general examiners or to a special examiner." Act, § 16; Code, § 60-302. "Except as otherwise provided, the suit shall be subject to the general rules of equity pleading and practice." Act, § 5; Code, § 60-203. "At the time and place set for the hearing the examiner shall, in like manner as other auditors or masters in chancery, proceed with similar powers. . . Within fifteen days after such hearing shall have been concluded, the examiner, unless for good cause the time shall be extended by the judge, shall file with the clerk a report of his conclusions of law and of fact. . . Any of the parties to the proceeding may, within twenty days after such report is filed, file exceptions to the conclusions of law or of fact or to the general findings of the examiner. . . If the petitioner, or any contestant of petitioner's right, shall demand a trial by jury upon any issue of fact arising upon exceptions to the examiner's report, the court shall cause the same to be referred to a jury. . . The issue or issues of fact shall be tried before the jury, in the event jury trial is requested, upon the evidence reported by the examiner, except in cases where, under the provisions of law in this State, evidence other than that reported by the auditor may be submitted to the jury on exceptions to an auditor's report. . . The verdict of the jury upon the questions of fact shall operate to the same extent as it would in the case of exceptions to an auditor's report in an ordinary case in equity. In all matters not otherwise provided for, the procedure upon the examiner's report and the exceptions thereto shall be in accordance with procedure prevailing in this State as to auditor's reports in equity and exceptions thereto. The right to grant a new trial upon any issue submitted to a jury, and right of exception to the Supreme Court, are prescribed. The judge may rerefer or recommit the record to the examiner in like manner as auditor's reports may be recommitted in any equity cause; or he may, on his own motion, *512 recommit it to the same or any other examiner for further information and report." Act, § 20; Code, § 60-304. "Amendments to petitions or other pleadings . . may be ordered or allowed by the court, at any time before final decree, upon terms that may be just and reasonable. . . The examiner shall have these powers, subject to review by exception to his reports." Act, § 24; Code, § 60-219. "After the record shall have been perfected andsettled, the judge of the superior court shall thereupon proceed to decide the cause; and if, upon consideration of such record, the title be found in the petitioner, the judge shall enter a decree to that effect. . . If, upon consideration of the record, he finds that the petitioner is not entitled to a decree declaring the land entitled to registration, he shall enter judgment and decree accordingly. If any person shall have filed a cross-action praying for the registration of the title to be found in him, the judge may enter a decree to that effect." Act, § 26; Code, § 60-222. (Italics ours.)
Other relevant statutes will be mentioned later in this opinion.
1. Regardless of the amendments offered by the plaintiff, the court erred in decreeing registration in favor of the defendant. Under the land-registration act, there can be no registration without findings of fact in favor of the party whose title is registered. Nor is this requirement peculiar to the land-registration act. It is a fundamental rule of law applying generally to judgments. The examiner here made a report consisting of findings of law and of fact. These findings were in favor of the plaintiff. No findings of any kind has ever been made by an examiner in favor of the defendant, in accordance with the statute. This court reversed the judgment without direction, and in the circumstances a direction would have been improper. As was stated in the former opinion (Lankford v. Holton,
In Schofield v. Stout,
2. It might be thought, however, that the judge necessarily *516
made a finding for the defendant in rendering the decree to which exception is taken, or, in other words, that "the requisite finding is included implicitly" in his final judgment. CompareRussell v. Mohr-Weil Lumber Co.,
"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." Code, §§ 10-402, 37-1103. "In all cases the jury shall find for or against each exception submitted, seriatim." § 10-406. "If exceptions are filed, after the same have been considered and passed upon by the court or jury, or both, as the case may be, the court shall order a verdict or a decree in accordance with the report, and the changes made by court or jury, unless the same shall require a recommitment." § 10-407. On application of these provisions, it has been held: "The only issues to be determined by a jury on the trial of exceptions of fact to an auditor's report are those made by the exceptions, and the jury must make a finding seriatim on each exception." (Italics ours.) Harris v. Lumpkin,
The reference in the preceding paragraph to the right of trial by jury under the land-registration act is not intended as an allusion to the right of trial by jury at common law. Whether or not this statute might be considered as providing for a special proceeding in which provision for trial by jury would not be essential to its constitutionality, it did to a limited degree provide for such trial, and it is only the right of a jury trialas so provided by the statute, to which the reference is intended. Lippitt v. Albany,
3. What, then, was the course to be followed in such case? The answer is, that on sustaining the exceptions to the examiner's report the case should be referred again to the same or a different examiner for a de novo investigation and report. Such is the procedure adopted by reference in the land-registration act; for, under the practice applying generally in cases referred to an auditor, where exceptions of fact are sustained, so as to leave no basis for a judgment or decree, the issues must ordinarily be again referred to an auditor, or submitted to a jury. We have seen that after the exceptions have been passed upon by the court or jury, or both, as the case may be, the court shall order a verdict or decree "in accordance with the report and the changes made by court or jury, unless the same shall require a recommitment." Code, § 10-407. In the instant case, there could be no decree in accordance with the report, because the report must be set aside in toto. A recommitment will therefore be necessary. Contrast Mackenzie v. Flannery,
As we shall see later in this opinion, the authorities next to be noticed are not inapplicable because they may refer to actions at law, trial by jury in equity cases being provided by statute
in this State. In Jellico v. Bailie,
In Dundee Mortgage Trust Co. v. Hughes,
In Lyons v. Harris,
It is contended by the defendant that the rule should be different in the present case, because the statute relating to land registration expressly declares that equitable procedure shall be followed. We can not sustain this contention; for, as indicated above, trial by jury in an equity case is generally a matter of right under the law of this State. It is true the right does not exist under the constitution as in common-law cases, but it is as clearly provided by statutes applicable generally to cases in equity. Code, §§ 10-402, 10-403, 10-404, 37-1101, 37-1103, 37-1104, 37-1105, 37-1205; Bemis v. Armour PackingCo.,
Even on interlocutory hearing, the determination of facts by the judge is only temporary or provisional. Thus, in Wolfe v.Claflin,
Well, the defendant has obtained a final decree without report of an examiner in her favor. If a report had been made in her favor, the plaintiff would have had the right to file exceptions of *525
fact thereto, and to demand a trial by jury on such exceptions. This is the only route to jury trial in such case, and it is the route to be taken before the plaintiff is concluded. This avenue was closed, however, by the procedure adopted. The plaintiff's waiver of such a trial on exceptions filed by the defendant to a report in favor of the plaintiff would not prevent her from demanding a jury trial in the event of a report in favor of the defendant and exceptions to such report by the plaintiff. The implied waiver as made would not extend to the latter situation, where the positions of the parties are reversed; nor to a judgment in defendant's favor without such procedure. Brown v.State,
From the authorities just considered and the statutes relating to trials in cases referred to auditors, it would seem perfectly clear on principle that such procedure should have been adopted in the instant case, even under the practice relating to equity cases. But the point has been virtually decided by this court in an equity case: In Jones v. Laramore,
If there are decisions by other courts to the contrary, it might be found on investigation that the law did not provide, as in Georgia, for trial by jury in equity cases. This is merely a suggestion, however, as we have made but little examination of the outside cases on this question, deeming the law of this State to be as stated. See Carr v. Fair,
The foregoing conclusion accords strictly with the decision by this court in Wiley v. Sparta,
Perhaps in ordinary action, either at law or in equity, the court might at such stage consider the reference to have spent its force, and submit the case for a de novo trial before a jury, without recommitment; but in a land-registration case the report of an examiner is a prescribed link in the procedure. A study of the act as a whole (see especially sections 15, 16, 19, 20, Code, §§ 60-301, 60-302, 60-303, 60-304) can leave no reasonable doubt upon this question; and such a report being a matter required by the statute, it is not within the phrase "all matters not otherwise provided for." Code, § 60-304. While not so in Georgia, under the registration *529
acts of some States reference to an examiner seems to be optional with the trial judge. Jamieson v. Reynolds, 154 N.Y. S. 836; Amundson v. Glos,
From what has been said, the case must be referred again to the same or a different examiner, for a de novo investigation, with the right of either party to offer amendments and introduce evidence, as upon an original hearing.
4. We consider next the assignments of error upon the disallowance of the amendments. Much has been said in the briefs, on each side, on the question whether the amendments were too late, and on the question whether the evidence which the plaintiff asked to present could have been lawfully admitted, in view of the rule that upon the hearing of exceptions to an auditor's report "no new testimony shall be considered, except in those cases where, according to the principles of law, a new trial would be granted for newly discovered evidence." Code, § 10-405, in which still other conditions are stated. We doubt if any of the evidence could be classed as newly discovered within the rule stated; nor was there any compliance with the other conditions prescribed. This, however, does not affect the rulings which we make upon other questions, and it is really immaterial in the view which we take of the case. With respect to the amendments, we have reached the conclusion that, instead of coming too late, they were really offered too soon. The plaintiff asked for their allowance and invoked a ruling thereon after the remittitur had been filed in the office of the clerk of the trial court, but before any further proceedings had been taken. As shown in the first division of this opinion, the filing of the remittitur had the effect of vacating the *530
orders and the decree which had been reversed by this court, but it did not serve to sustain the exceptions to the examiner's report. Nor, it seems, would the judgment making the remittitur the judgment of the trial court, operate to sustain such exceptions, when there was no superadded order or judgment tothat effect. Be that as it may, so long as these exceptions were not sustained, the report of the examiner in favor of the plaintiff continued extant; and while these proceedings stood thus opposed to each other as for trial, the plaintiff could not amend in the manner proposed, the amendment not having been offered to supply basis in the pleadings for evidence already introduced, nor as like support for any finding of fact made by the examiner. Milner v. Mutual Benefit Building Association,
The sustaining of the exceptions, however, will set aside the examiner's report, and the right of amendment will then reappear. After the case has reverted to that stage, amendments may be allowed either by the trial judge, before or at the time of recommitment, or by the examiner on the new hearing. Code, §§ 10-103, 60-207, 60-219. The court did not err in disallowing the amendments, in the condition of the case at the time they were offered. The foregoing conclusions are deemed not to be contrary to any of the following or other decisions cited for the defendant: Arnold v. Georgia Securities Co.,
Judgment reversed. All the Justices concur, except Reid, C. J.,disqualified, and
Dissenting Opinion
The majority opinion rules that the judgment should be reversed, and the case recommitted for a de novo hearing before the examiner. The prevailing opinion makes it sufficiently clear that the practice and procedure concerning the action of the judge in relation to the report of the special examiner under the land-registration act is similar to that where an auditor's report is before him; and what follows is on the presumption that that premise is correct, and for convenience the word "auditor" will be used instead of "special examiner." I do not regard the language in the latter part of section 60-304 of the *532
Code, which is a part of the registration law, as to when a judge is authorized to recommit the report, as any enlargement of his powers from those accorded him in title 10 of the Code (§ 10-305) in relation to auditors. The basis of the decision of the majority is that there had been no finding by the examiner on which to base such a decree. I differ in toto from such an interpretation of this record. There was, I think, the absolute equivalent of a finding to that effect; and this is sufficient. The auditor filed a report of the evidence, which was before the trial court, as well as were his findings thereon. He found in favor of the applicant, whom we refer to as the plaintiff. Exception was filed thereto. The issue thus formed was for decision by the judge, in the absence of a demand for a jury. He found in favor of the finding and against the exception. This court on review held that the evidence as a matter of law demanded registration in favor of applicant's adversary, Mrs. Lankford. When the remittitur was entered, and the case reached the trial judge, what was he to do? He had before him the evidence as reported by the auditor. This court had said that it demanded a certain decree. The judge entered it, and according to the opinion of the majority his judgment for so doing should be reversed. With the evidence before the judge, and the judgment of this court adjudicating that under such evidence only one legal decree could be entered, a decree in accordance therewith was in effect a decision sustaining the exception. The fundamental error, it seems to me, in the majority opinion is the statement that the trial court entered a decree in the absence of a finding. When an auditor finds that black is white, and this court on writ of error adjudges that white is white, my view is that the trial judge, who under the statute, in the absence of a demand for a jury, passes on the exception, is justified in framing a decree based on the proposition that white is white. I think that under such circumstances there has been to all intents and purposes a finding of fact to support the decree to which exception is taken. The effect of the ruling of this court upon the former appearance of this case was to hold that under the evidence, Mrs. Lankford was entitled to have her title registered. The evidence, before the trial court, when the case was again called, was the same. The report of the auditor contained the evidence. It was a part of his report. This court construed the evidence as a *533
whole. It adjudged its effect. It is nothing new to our law that a judge may frame a decree based in part on the undisputed evidence. Law v. Coleman,
Because our Code, § 37-1201, defines a decree as "the judgment of the judge in equitable proceedings upon the facts ascertained," it does not follow that there can never be a decree unless there is a formal finding of facts. Compare § 37-1101. All of us can recall instances where the court, on the petition and answer, there being no issue of fact involved, can properly enter a decree. In such a case the decree is not based on a finding of fact. The statement that a decree must be based on a finding of fact presupposes an issue of fact.
In the majority opinion it is stated that on the second hearing before the auditor, the evidence may not be the same. The vice of that suggestion is that it presupposes a rereference to the auditor, for reasons beyond those contemplated by our Code. The opinion seems to proceed on the premise that when a jury finds in favor of an exception, the finding is thereby merely wiped out, and hence that there is no finding one way or the other. This may be true in many cases, but it does not apply when the inquiry involves the question of yes or no; and herein, it seems to me, lies the error of my colleagues, to wit, their conclusion that when a jury sustains an exception they do nothing more than to obliterate the finding. This may be true in some cases; but in others, as in this, they do more; they establish that what the auditor reported *534
as a fact was not a fact. If the establishment of such fact be essential to the case of the party asserting it, then by the jury's finding he loses. This follows because he has not carried the burden. The majority cite Schley v. Schofield,