77 Ga. 118 | Ga. | 1886
Lead Opinion
This case was heard and disposed of upon exceptions taken to the report, of the master in chancery, made up and returned in pursuance of the act of the general assembly, approved October 16,1885, entitled “ An act to define the duties of masters in chancery and auditors; to regulate the filing of exceptions to their reports, and define the duties of the judges of the superior courts in the premises,” etc. (Acts, 1884-5, p. 98). The act, so far as it is material to consider it in this case, consists of a single section, and provides, 1st, that the master shall report the evidence heard by him, the facts found by him, his rulings on all questions of law, and a general summary of his findings. 2nd. It regulates the filing of exceptions and describes what they must contain, viz., that they shall “plainly and distinctly state the finding or decision complained of and the error committed.” 3rd. When this is done, it becomes the duty of the judge “ to carefully and attentively examine the report” (and necessarily, as we take it, the exceptions made and the specification of errors contained in such exceptions), “ and if it does not appear that error has been committed, he shall approve the report and dismiss the exceptions,” and thereupon a verdict is to be taken in accordance with the master’s findings; but, 4thly, if he shall find that error has been committed, then the exception specifying such error is to be approved, and the issue made by the finding and the exception is to be submitted to the jury, and on the trial of that issue, only so much of the evidence reported as is pertinent to this issue
1. Notwithstanding the rules of extreme caution, which all courts feel bound to observe in dealing with constitutional questions, such as the impropriety of entertaining them at all, when the case can be disposed of on other grounds, and the further consideration that an act is never to be declared unconstitutional when there is doubt as to the authority assuming the exercise of the power on account of the comity due from one department of the government to its co-ordinates, to say nothing of the absolute prohibition imposed by the fundamental law upon each department of government to ab; tain from invading the province of the Others, we are met in limine with the I ¡somewhat startling proposition, confidently and boldly | asserted and persistently rather than plausibly maintained, [¡that this act is directly opposed to that provision of our Í | state constitution (Code, §5174) which declares that '-the ([.right of trial by jury shall remain inviolate.” The words Uof the act, without more, it seems to us, afford an all-sufficient and conclusive answer to the position. Provision is made by it for submitting to the jury every conceivable issue made by exceptions to the master’s report involving disputed questions of fact. Long before the adoption of the constitution of 1877, final decrees were rendered by the presiding judge without a jury, where there were no
The interposition of juries in the trial of chancery cases is purely a matter of legislative regulation, and originated, so far as respects such trials in this state^in the judiciary/ act of 1799, and has since been adhered to with various modifications made from time to time by the general assembly. Certain it is that no such right existed in England, either before or after Magna Charla, and that it never has and does not now exist in many of our sister states having the same constitutional provision as ours.
It is insisted that both exceptions of law and exceptions
The complainant, Mahan, and the defendant, Cavender, were the creditors of one Patton. Cavender seems to have been the more vigilant, or, perhaps, the less indulgent, creditor of the two, both in securing a mortgage for his debt and in reducing it to judgment by a foreclosure of his mortgage, as well as in enforcing the execution issuing upon his judgment of foreclosure. Mahan, instead of urging the collection of his debt, seems to have felt great sympathy for Patton, and when his property -was finally levied on and about to be brought to sale, he assisted him in endeavoring to pay a part of his debt, and thus to postpone the final execution of the judgment Cavender held against him. When these efforts failed, Mahan filed this bill to arrest the execution of the judgment, alleging that there was usury in the debt; that the mortgage taken upon Patton’s property was for an amount largely in excess of what Cavender claimed to be due him; that the arrangement was collusive, and made with a view to keep Patton’s other creditors from interfering with him,-and to hinder and delay them, and thus, in the end, to defraud them, and on these grounds he prayed to set aside Cavender’s judgment, or at least to postpone its payment in favor of liens of younger
Judgment affirmed.
Concurrence Opinion
concurred in the judgment, but not in the construction of the act of 1885, considered in the light of the constitution. He thought that the presiding judge, should look at the reported evidence and see if the evidence was one way. If so, he could rule upon it in the
Concurrence Opinion
Blandford, J.,
concurred. He thought that the right to have a jury trial *in equity causes was a statutory right, and not one arising at common law or under Magna Charta; and that the object of the legislature was to abbreviate the submission to a jury of questions arising in the class of cases to which the act referred.