Smith v. Smith

69 S.E. 1110, 135 Ga. 582, 1911 Ga. LEXIS 6

• Court: Supreme Court of Georgia
• Decided: January 11, 1911
• Status: Published

Opinion

Evans, P. J.

1. A petition by one partner against his copartner, praying for a dissolution of the partnership, an accounting, and an injunction, is an equitable proceeding (Fowler v. Davis, 120 Ga. 442 (47 S. E. 951)), and the judge may refer all or any part of the facts to an auditor to investigate and report the result to the court.

2. “If the auditor failed to report with' sufficient fullness on any issue, a motion for a rereference, not an exception to the report, was the proper remedy.” Fricker v. Americus Improvement Co., 124 Ga. 165 (7), 172 (52 S. E. 65). Civil Code, § 4593.

3. The motion to recommit an auditor’s report must be filed within twenty days after the report is filed, and written notice thereof given by the auditor to the parties. Littleton v. Patton, 112 Ga. 438 (37 S. E. 755).

4. An application for mandamus to the auditor, to compel certification of exceptions relating to matters not appearing on the face of the record, comes too late when made after the lapse of thirty days from the filing of the exceptions. Civil Code, § 4591.

5. It is within the discretion of the court, in an equitable action, to apportion the auditor’s fee against the parties.

6. The decree was in accordance with the report of the auditor.

Judgment affirmed.

All the Justices concur, except Fish, C. J., absent.