Green & Sutton v. Valdosta Guano Co.

48 S.E. 984, 121 Ga. 131, 1904 Ga. LEXIS 39

• Court: Supreme Court of Georgia
• Decided: November 11, 1904
• Status: Published

Opinion

Lamar, J.

The fact that the note designated attorney’s fees as “liquidated damages” did not deprive the plaintiff of the right to a judgment therefor, if the other conditions for a recovery existed. The first six exceptions were wholly insufficient in form; the assignments of error were not complete in themselves. They did not set out the ruling complained of, or the question or answer or evidence objected to. Under repeated rulings on this subject, the court did not err in striking them.

The complicated character of the issues usually involved in equity cases, together with the fact that evidence applicable to one finding of the auditor may be inapplicable to another, may make it necessary to assign specific error upon his rulings of fact; and this assignment ought to be complete in itself, pointing out what part of the evidence in a voluminous record illustrates the exception taken. . This is an ancient rule of practice, originating in courts that had no juries. Where there is no constitutional right to a trial by jury, the same rule of practice may be prescribed in this State. And this has been done by the provisions of the Civil Code, §§4589, 4596. Hence in equity cases, where complaint is made as to an auditor’s report on matters of fact, if the chancellor approves the finding of the auditor he disapproves the exception, and the same need not be-submitted to a jury. If, however, he disapproves the finding, he approves the exception, -and the issue of. fact is then submitted to the jury. Weed v. G., J. & S. R. Co., 119. Ga. 577 (7, 8, 9). - But in actions at Taw, where, the pleadings have raised an issue of fact, both parties have the constitutional right to have that issue passed on by a jury, and this right can. not be taken away either by a rule of practice - or an express statute. Of course the case’ may break down, and a nonsuit may be granted, or the evidence may be of such a character as to warrant the direction of a verdict. But where there is an issue raised by the pleadings, and ’ any conflict in the evidence, the ease must be submitted to the jury. And such is the express requirement of the Civil Code, §4595, in reference to exceptions to an auditor’s report in actions at law. Weed v. R. Co., 119 Ga. 577 (6). The auditor’s finding of $968.37 was in terms as general as those ordinarily used in a verdict. Had this been a motion for a new trial on the ground that the verdict was contrary to evidence, it would have been sufficient. The exception was as definite as the finding, and sufficient in form to entitle the defendants to have all of the evidence submitted to the jury, in order for them to determine whether this general finding of the auditor was sustained by the testimony. It was therefore error to strike this exception. See Poullain v. Brown, 80 Ga. 30; Anderson v. Blair, 121 Ga. 120.

Judgment reversed.

All the Justices concur.