90 Ga. 590 | Ga. | 1892
On September 22, 1890, John Flannery & Co. filed their affidavit to foreclose a landlord’s special lien against J. H. Mackenzie for supplies furnished, amounting to $1,819.68. To the execution issued upon this affidavit, the defendant interposed a counter-affidavit upon the ground that the plaintiffs had no lien against him as landlords. On October 4, 1890, the defendant filed also an equitable defence, in which he alleged, among other things, that in 1887 he did business with the plaintiffs as his commission merchants, they furnishing him large amounts of money and he shipping them large amounts of cotton to be disposed of on his account; that in April, 1888, he notified them that he had formed a copartnership, and thereafter the account would be run in the firm name of J. H. Mackenzie & Co., and that the plaintiffs accordingly transferred to the account of his said firm the balance then claimed as due by the defendant; that this firm dissolved and the affairs between it
Upon this equitable defence the judge granted a rule to show cause why the relief prayed for should not be granted. The plaintiffs made a response, and on the hearing it was ordered that the prayer for injunction, receiver and the appointment of an auditor be refused. In their answer the plaintiffs replied in detail and at considerable length to the allegations of the defendant's plea, and among other things stated that “ the amount of plaintiffs’ claim and the correctness thereof against J. IT. Mackenzie & Co. have been admitted in writing by the defendant, and the balance now due the plaintiffs is $11,877.78, besides interest, and such attorney’s fees as they may hereafter be entitled to charge under the contract, on collection of balance due.”
The case was afterwards referred to an auditor, and the auditor made his report, which appears at length in the record; but the evidence which was introduced before him is not a part of the record in this court. To this report the defendant filed a number of exceptions, dividing them into matters of law and errors of fact. The defendant moved to recommit the case to the auditor for report on two grounds, and, subject to this motion, to disapprove the report as a whole, and, if not disapproved as a whole, to sustain the exceptions of law thereto, and to set the case down for a hearing before a jury at the next term, as to the exceptions of fact. All these motions were overruled, and the court, after hearing argument on the exceptions, disapproved and dismissed them, and sustained and approved the report as a whole. To these rulings the defendant excepts and assigns error in this court. The defendant further excepts to the overruling of his motion to set aside the order allowing fees to the auditor; to the overruling of
1. It was complained that the defendant was denied his right to a trial by jury of the issues of fact raised by his exceptions to the auditor’s report, and that the action of the court in directing a verdict was erroneous, notwithstanding the statute of October 16th, 1885, which declares that it shall be the duty of the judge to examine the report, and if it does not appear that error has been committed, he shall approve the report and dismiss the exceptions, and a verdict shall be taken in accordance with the findings of the auditor. (Acts 1885, p. 98.) It was insisted that the court erred in applying to the case this provision of the act, because
Undoubtedly if this had remained merely “ a pi’oceeding on the law side of the court,” the defendant would have been entitled to have the issues of fact passed upon by a jury, notwithstanding this statute. Poullain v. Brown, 80 Ga. 30. But by his equitable plea a complete change in the nature of the case was effected. It became as much a cause in equity as if he had instituted a separate proceeding for equitable relief. This plea was not merely a defence to the statutory proceeding, and its purpose was not confined to the defeat of that proceeding. It brought before the court matters outside of the scope of such a proceeding, and sought the administration of relief which could be granted only in the exercise of the equitable powers of the court. It was a petition for injunction aud the appointment of a receiver, for an accounting and an auditor, for the ean.cellation of deeds, the return of collateral security, etc. Aud as a basis for this relief, it set up transactions antecedent to the account sued on, extending through a period of several years before the relation of landlord and tenant was claimed to have begun, and the investigation of which required an examination into numerous and complicated matters of mutual account, involving many thousands of dollars. The introd action of this plea led to responsive pleadings by the plaintiffs, in which was set up, among other things, a claim for a balance due them by Mackenzie & Co. of $11,377.78,-besides the $1,819.68 claimed as due by the defendant for supplies furnished him as tenant. The defendant, moreover, offered to “ do equity and pay or secure to the plaintiffs what he may justly owe them,” and .stated that “if upon a just accounting it should be shown that he
In support of the contention that the case should have been treated as legal rather than equitable, reference was made to the “uniform procedure act” of 1887, (Acts 1887, p. 64.) This act, however, does not go to the length of abolishing all distinction between legal and equitable remedies and relief and the modes of administering them. Except in providing that both kinds shall be applied for by one form of petition, and may be administered by the court in one and the same proceeding, it leaves the mode of trial as to each unchanged. The purpose of the act was to enable parties to approach the court as a single instead of a dual forum, and by a uniform mode of procedure, whether the relief sought was legal or equitable, and to enable the court, on the trial of any civil case, to “ give effect to all the rights of the parties, legal or equitable or both,” and apply such “ remedies or relief, legal or equitable or both, in favor of either party, as the nature of the case may allow or require.” It did not curtail any of the judge’s powers as chancellor. If the case was one in which,
2. The order of reference says r “ As the case is largely a matter of account, it is ordered that the case be referred to an auditor for determination.” Under this order the whole case in the matter of accounting, as presented by the pleadings, was submitted to him. The defendant, as we have seen, prayed for a general accounting, and to this end prayed also the appointment of an auditor. This general accounting was had, and the defendant was heard before the auditor and introduced evidence as to all the matters involved. After the auditor had filed his report, finding a balance upon the general accounting in addition to the $1,819.68 claimed in the proceeding to enforce a landlord’s lien, the defendant moved that the report be recommitted for correction and further finding, upon the ground that the auditor had exceeded his jurisdiction in finding as to any other matter of account than the claim made in the foreclosure proceeding. It is clear that the court did not err in overruling this motion.
3, 4. The exceptions to the overruling of the defendant’s motion, made at the final hearing, to dismiss the affidavit of foreclosure, and to the disallowance at the same time of an amendment to the counter-affidavit, are ruled upon in the 3rd and 4th head-notes to this opinion.
5-7. The evidence taken before the auditor and by reference made a part of his report, not having been
8. The auditor propérly declined to consider a claim for damages arising ex delicto from an alleged excessive levy in the foreclosure proceeding. Such damages were not a proper element to be embraced in the account taken by the auditor.
9. It was complained that the court erred in assessing against the defendant the entire amount of the auditor’s
10. Where a petition is filed on the equity side of the court, praying for a general accounting between the parties, and the matter is referred to an auditor, he may find a balance in favor of the defendant, without any special prayer in his pleadings for a decree in his behalf. Goldthwait v. Day, 149 Mass. 185; Wyatt v. Sweet, 48 Mich. 539. And see Pulling on Accounts, 156, 165; Mitf. & Tyl. Eq. Pl. & Pr. (ed. 1878), p. 215; Seaton, Decrees (1 Am. from 4 Eng. ed. 1884), 431, 434; 1 Am. & Eng. Ene. L. 1015. The defendant in this case having prayed a general accounting, and offered to do equity and to pay the plaintiffs whatever balance might be found to be due them, the auditor could find a balance in favor of the plaintiffs, although there was no prayer in their pleadings for a decree in their behalf.
11. The exception to the finding against Mackenzie & Co., on the ground that Mackenzie only was a party to the case, is ruled upon in the 11th head-note.
The affirmance of the main bill of exceptions renders it unnecessary to consider the cross-bill of Elannery & Co. Judgment affirmed.