173 Ga. 146 | Ga. | 1931
(After stating the foregoing facts.)
Should the decree of the court be reversed because the judge refused to recommit the ease to the auditor P The first ground of the motion to recommit is that the auditor failed to consider and pass upon the demurrer to the answer of the defendant. In the final decree the judge considered and passed upon this demurrer, and overruled it. It would now be doing a vain and useless thing to recommit the case to the auditor, so that he could consider and
The second ground of the motion to recommit was that the judge, in passing upon the demurrer to the original answer of the defendant, sustained certain special grounds of demurrer, with leave to the defendant to amend his answer to meet the defects therein pointed out, and with order that unless he did so his answer was dismissed. Plaintiffs filed before the auditor a motion reciting the foregoing facts, and asserting that the defendant had failed to meet the defects pointed out in the special grounds of their demurrer to his answer, and failed to comply with the order of the court in his amendment to his answer; and for this reason the plaintiffs urged in their motion that the auditor adjudicate that said amendment did not comply with the order of the court, that the answer of the defendant was dismissed under-said order, and that the case was in default; which question the auditor failed to pass upon. In the final decree the judge held that the defendant had filed an amendment to his answer as required by the court’s order and within the time allowed thereby. In this situation the remedy for the plaintiffs would be to except to the final decree on this point.
The third and fourth grounds of the motion to recommit the case were that the plaintiffs objected to the introduction of certain oral and documentary evidence by the defendant, and that the auditor failed to rule upon the admissibility of this evidence and to report whether he had admitted it or rejected it. In the final decree the judge held that the findings of the auditor were supported by the evidence, irrespective of his rulings on evidence as contained in the motion to recommit; and that for this reason all exceptions to the report of the auditor should be overruled and his report approved. Thus the judge in effect held that, with the evidence ruled out to which the plaintiffs objected, the report of the auditor was right. The remedy of the plaintiffs in this matter was by direct bill of exceptions to this holding of the trial judge.
The auditor held that the defendant was competent to testify as a witness as to transactions between liis deceased mother and himself, touching the alleged agreement between them by which he was to have at her death her interest in the premises in dispute if he cared for and supported her during her life, The
The plaintiffs further except to the decree, upon the. ground that the judge erred in not decreeing title in them to the premises in dispute. This exception is based upon the contention that the plaintiffs filed a demurrer to the original answer of the defendant; that the court sustained special grounds of this demurrer and dismissed the answer, but granted leave to the defendant to amend within a given time to meet the defects pointed out by the special demurrer; that the defendant amended his answer within the time allowed, but did not cure the defects against which the special demurrer was directed; that in consequence of the failure to cure these defects the answer stood automatically dismissed under the original order of the court; and that upon motion of the plaintiffs it was the duty of the court to hold that defendant had not complied with the order requiring him to amend his answer, and to adjudicate that the defendant was in default. They further contend, that, as the auditor did not pass upon their motion asking the court to adjudge the case in default and to hold that the answer
We do not think that the defendant can now insist upon his exception pendente lite to the ruling of the court upon the grounds of special demurrer to his answer, and assign error thereon in this court. His exception pendente lite will not now avail him, for the reason that he undertook to meet the ruling of the court sustaining the special grounds of demurrer to his answer by amendment, and thereby waived his right to except to the ruling holding that his answer was open to the attacks made by the grounds of special demurrer. If the defendant was of the opinion that his
Other assignments of error are without merit. We reach the conclusion that the judge did not err in overruling the exceptions of the plaintiffs to the report of the auditor, and in rendering a final decree, in favor of the defendant.
Judgment affirmed.