116 Ga. 279 | Ga. | 1902
The Exchange Bank of Macon and the Merchants ■ & Mechanics Bank of Columbus each separately instituted an equitable petition in the superior court of Talbot county against the Peoples Bank of Talbotton, in each of which cases the petitioners sought to require the latter bank to transfer on its books certain certificates of its stock-to each of petitioners, and to issue new certificates on the shares of stock so to be transferred. The case of the Exchange Bank had been returned to the September term, of the court, and that of the Merchants & Mechanics Bank to the following March term. The case of the Exchange Bank-was, by consent of parties, referred, by order of court, to G. Y. Tigner as auditor, to hear the same and report his finding to the next term of the court. Thereupon counsel for the Merchants & Mechanics Bank entered into a written agreement with counsel for the Peoples Bank, which was as follows : “ Whereas there is a certain equitable petition in favor of the Exchange Bank of Macon against the Peoples Bank of Talbotton, being a petition asking that deft, be decreed td transfer to plff. certain bank stock therein described; and which suit has been referred to G. Y. Tigner as auditor to report to the next term of this court: It is hereby agreed between counsel in above-stated case that the verdict and decree in said case of Exchange Bank shall control and govern in the case of the Merchants & Mechanics Bank, and that, when decided, a verdict and decree shall be rendered in accordance therewith, and in the meantime said case shall stand continued.” The agreement was approved by the judge and entered 'on the minutes of the court. The auditor heard the Exchange Bank case, and before the next term of the court filed his report therein. To this report the Exchange Bank filed exceptions both of law and of fact, which came on to be heard, and before the same were passed on, counsel for the Mer
There were two good reasons why this decree should not have been rendered. First, it was prevented by the agreement which had, before that time, been entered into by the parties and approved by the court. When properly construed, that agreement will be found to mean that the case of the Merchants & Mechanics ■ Bank against the Peoples Bank was never to be tried at all, but
The second reason why the decree complained of in the present-case should not have been rendered is, that it is based in terms upon a finding of the auditor in the Exchange Bank case, as appears in his report, and on the evidence of one of the witnesses who testified on the hearing of that case before the auditor. In our judgment neither the report of the auditor in the Exchange Bank case nor the evidence of any witness on the hearing of that case before the auditor had anything to do with a rendition of a decree in the Merchants & Mechanics Bank case. That case had
Judgment reversed.