172 Ga. 510 | Ga. | 1931
As appears from the record, J. E. Camp, W. B. Loyd, W. H. Mitchell, and Kieffer Lindsey were partners in the contracting business. In the course of personal dealings or in the conduct of the partnership business Camp was the holder of an obligation in which he and the other partners, by promissory note, undertook to pay to J. E. Camp the sum of $3,000, with interest at the rate of eight per cent, per annum from the date of the note, April 8, 1925. This paper was indorsed by Camp, and by him thereafter hypothecated to a bank, and later paid off by him. The business of the partnership having been closed, Camp brought suit in the superior court to recover from his partners, by way of contribution, three fourths of the unpaid balance upon the note. The defendants filed an answer and cross-bill, denying owing anything to the plaintiff on the note sued on; and averring that certain money for work done by the partnership had been paid to Camp for the partnership, and that unused material and equipment belonging to the firm, amounting to at least ten thousand dollars, was sold and the money received by Camp; and “that upon a full and correct accounting to defendants for said funds, it will be found that the note sued on and all other indebtedness of said firm has been fully paid, and that these defendants are not indebted to plaintiff in any sum whatever, but that on the contrary the plaintiff will be found indebted to said firm in the sum of $5000 or other
The defendants filed no exception of law, but they filed the following exceptions of fact to the report of the auditor:
(1) “They except to the finding of facts third, that the evidence submitted to the auditor does not sustain the contentions of the defendants as set out in paragraphs 11, 12, 13, 14, and 15 of the original answer, and say that said finding is contrary to all of the evidence in the case, and is specially contrary to the testimony of W. H. Mitchell, one of the defendants, who testified on behalf of the defendants, his evidence beginning on page 18 of the transcript of the evidence and continuing through and ending on page 31 of the transcript filed by the auditor, and beginning again on page 63 of the transcript of the evidence and ending on page 67 of such transcript. Such finding is also contrary to the testimony of the defendant W. B. Loyd, beginning on page 31 of such transcript and continuing through all the pages and ending on page fifty-one (51) and the testimony of W. B. Loyd as set forth in said transcript*512 beginning on page 60 and extending through page 62 of the transcript. It is also contrary to the testimony of G. M. Russell as set out on page 51 of said transcript of evidence. It is also contrary to the testimony of Kieffer Lindsey as set out in said transcript and beginning on page 52 of said transcript and continuing through page 59 of said transcript. The evidence material to this exception is set forth in the testimony of W. H. Mitchell on pages 18 to 31 inclusive, and on pages 63 to 67 inclusive, as set forth in the transcript, and the evidence of W. B. Loyd as set forth and contained on pages 31 to 51 inclusive, and pages 60 to 62 inclusive, of said transcript, and the evidence of G. M. Russell as set forth on page 51 of said transcript, and the testimony of Kieffer Lindsey as contained in pages 52-59 inclusive of said transcript, and the testimony of J. E. Camp as set forth on pages 2 to 17 inclusive of said transcript and on pages 68 to 80 inclusive of said transcript of the evidence. Defendants refer to said testimony by page in the transcript of the evidence reported and filed by the auditor.”
(2) "They'say that the finding of the auditor as set forth' in his fifth finding of fact, that the partnership received the several sums of money referred to in the 4, 5, 7, 8, 9, and 12 paragraphs of the amendment to the defendant’s answer is contrary to all of the evidence in the case and is without any evidence to support it, and the finding that the partnership is not entitled to any credit on the note sued on for said amounts is contrary to all of the evidence in the case and without any evidence to support it, and the defendants specify in support of this exception all of the evidence admitted by the auditor and filed in the ease; and especially is such finding contrary to the evidence of W. EL Mitchell as appears beginning on page 18 and extending through page 31, and beginning again on page 63 and extending through page 67 of the transcript; and the testimony of W. B. Loyd beginning on page 31 and extending through page 62 of said transcript; and the testimony of G. M. Russell as set out on page 51 of said transcript; and the testimony of Kieffer Lindsey as set.out beginning on page 52 and extending through' page 59 of said transcript; and the testimony of J. E. Camp beginning on page 2 and extending through page 17 and beginning again on page 68 and extending through page 80 of said transcript; the testimony relied upon in support of this exception being all the testimony of the above-named*513 witnesses an cl is Set forth in the transcript on the pages named and referred to.”
(3) “They except to the tenth finding of fact on the ground that the finding is contrary to all of the evidence submitted and is without evidence to support it, and specify all of the evidence admitted and contained in the auditor’s report, and especially the testimony of J. E. Camp in full, as contained on pages 2 to 17 inclusive, and pages 68 to 80 inclusive, of the transcript of the evidence. Also the testimony of W. H. Mitchell in full, as set out on pages 18 to 31 inclusive, and pages 63 to 67 inclusive, of the transcript of the evidence. Also the testimony of G-. M. Eussell as set out in full on page 51 of the record of the evidence. Also the testimony of W. B. Loyd as set out in full on pages 31 to 51 inclusive, and pages 60 to 61 inclusive, of said transcript of the evidence. Also the testimony of Kieifer Lindsey as set out in full on pages 52 to 59 inclusive of the transcript of the evidence.”
A demurrer to these exceptions was sustained, and the court refused to approve them. The court then affirmed the findings of the auditor and entered a decree in accordance therewith.
The court did not err in striking the exceptions of fact to the findings of fact reported by the auditor. As will readily be seen,these exceptions are so vague and general, so indefinite, as to present nothing for the consideration of the court below or of this court.It will be noted that, instead of stating why the auditor’s findings of fact were contrary to law, there is a mere general statement in each of the three exceptions that the finding of the auditor is contrary to the evidence. Instead of stating what evidence is referred to, there is a mere reference to the evidence contained at certain designated pages in the report of the auditor as to the testimony of five named witnesses; and as if to avoid that clearness of specification required by law, it appears that the pages referred to in all of the three exceptions are identical as to each witness. Upon the subject of exceptions to auditors’ reports, the Code of 1910, § 5135, provides: “Within twenty days after the report is filed and such notice given, either party may file exceptions, to be separately classified as ‘exceptions of law’ and ‘exceptions of fact.’ All exceptions shall clearly and distinctly specify the errors complained of.” In the exceptions before us, it is manifest that there is nothing so clear or distinct as to enable this court to determine
From the record it clearly appears that this action, being between partners inter sese, is cognizable in equity; and as none o£ the exceptions were approved by the trial judge, the plaintiffs in error have no right to insist upon a trial by a jury. By reference to the statement of facts it is very plain that the exceptions alleged in the bill of exceptions only present, in different language, the contention that the decree and judgment rendered is contrary to law for the reasons stated in the bill of exceptions. None of these exceptions are meritorious.
Judgment affirmed.