Jones v. Bond

76 Ga. 517

• Court: Supreme Court of Georgia
• Decided: March 9, 1886
• Status: Published

Opinion

Jackson, Chief Justice.

An action was brought by Mrs. Bond, Cora, Robert and Georgia Almond against Jones, as trustee and administrator de bonis non, on the estate of one Hall. The mattérs in dispute were referred to an auditor, and on exceptions to his report, which sustained an arbitration and award between the parties made by Judge Wm. M. Reese, the base was tried. In consequence of .the fact that the administration of Jones on the estate is all mixed'with his trust under the 6th item of Hall’s will, and the testimony' and report of the auditor embraced all his acts respecting that estate, while finally only the trust in the 6th item was' passed upon by the jury, though exceptions seem to embrace all the auditor did in regard to everything, and testimony about all was had, the record is necessarily much confused, and voluminous' beyond all reason. It is quite a task to sift the wheat from so much chaff and reach the kernel of the case.

The motion for a new trial, however, will develop the points of law with sufficient clearness to enable this court to adjudicate the issues that motion makes.

1. The auditor ruled to the effect that the arbitration and award of one arbitrator would bind the wards of a guardian, whether ratified by them when sui juris or not; and this judgment having been overruled by the superior court, and the judge having charged to the contrary, is made one ground of the motion for a new trial. The point goes to the vitals of the case so far as two of the plaintiffs below are concerned, and therefore, if the court was in error, a new trial must be granted as to them.

■ There are two modes provided by the Code of Georgia for submission of matters of dispute to arbitration: one under the act of 1856, codified in sections 4225 et seq., and the other codified in sections 2883 et seq. Under the act of 1856, there must be three arbitrators. Code, §1227. Under the old mode, codified from the common law, it is believed any number will do. Code, §4248. In either case, a guardian may make the submission. Code, §4225, authorizes it done by the guardian under the act of 1856. Code, §2884, authorizes it in the other or common law mode without regard to the act of 1856, and outside of its provisions or the codification of them. The question whether there be the two modes is not open in this court. 31 Ga., p. 3, 5th head; 61 Id., 162-4. Under the common law mode, there need be no order to make the award the judgment of the court; but it is binding without, unless attacked for fraud in arbitrators or party, or a palpable mistake of law, or reference to chance or lot. 61 Ga., 162-4.

So that the court below erred in the ruling on this point.

2. It is not incumbent on the court to send the case back to the auditor when that officer has erred on points of law, especially where no error hurt the movant therefor; and in this case, it is clear that the court did not err in overruling that motion of plaintiff in error.

3. As the case will be tried again, we express no opinion, on the ground that the verdict is contrary to the evidence. In so far as it militates with the views expressed in this opinion on the first ground of the motion, it is contrary to law, so far as the record before us develops the case. What new phase new facts may put on it, we cannot foresee.

4. We are clear that the rule of law under which the general verdict was found is wrong. Under the ruling in the 71st Ga., 649, the jury may differ from the decision of the auditor on facts, where they are reported by him, just as the court may overrule him on legal questions. If the point were open, the spirit of our Cbde would settle it. Section 3097 declares that, “ in equity causes the court may refer any part of the facts to a master or auditor, and his report thereon shall be prima facie the truth, after allowance by the court, either party having the liberty to except. But the final decision upon the fads shall be by a special jury.” By analogy, of course the same rule applies to cases at law, just as the rule of the conclusion of the auditor at law being prima facie the truth, has always been held to apply.

It is true that the learned judge saw the error when his eye fell on the 71 st Ga , and overruled this ground or position, because it was favorable to the movant for a new trial, if error; but his case might possibly have been strengthened by the introduction of more evidence or further explanation on the stand by himself. At all events, when a case is tried on a misapprehension of the controlling rule of law which governs what evidence is necessary to overcome a prima facie bar of the rights of parties, it is well to try it over, especially when the verdict is permitted to be general, by consent it is true, when the law is explicit that each exception to an auditor’s report must be passed upon seriatim.

The relation between husband and wife is close, and the acts of the two should be scanned closely, where one holds himself out as the agent of the wife, and we think that the case had better be tried over again as to all three plaintiffs, in addition to the fourth, as to 'whom the court below granted a new trial.

Judgment reversed.