Smith v. Wilkinson

85 S.E. 875, 143 Ga. 741, 1915 Ga. LEXIS 603

• Court: Supreme Court of Georgia
• Decided: July 20, 1915
• Status: Published

Opinion

Lumpkin, J.

1. An equitable suit for an accounting and specific performanee was referred to an auditor. To the report of the auditor exceptions of law and fact were filed. The first and second grounds of exception, both of law and of fact, were “because the auditor does not include in his report of the evidence” certain documentary evidence and testimony introduced on the hearing before him; and the third exception of law was: “Plaintiff excepts, as an exception of law, to the auditor’s report, because the auditor does not separately report as such his findings of facts and his findings of law, so that the parties may properly except to said report.” Held, that such matters did not furnish proper grounds of exceptions to the auditor’s report, but should have been made the basis for a motion to reebmmit the case to the auditor. Civil Code (1910), § 5139; Southern Pine Co. v. Dickey, 136 Ga. 662 (71 S. E. 1110).

2. “The neglect of a party excepting to an auditor’s report on matters of fact, or on matters of law dependent for their decision upon the evidence, to set forth, in connection with each exception of law or of fact, the evidence necessary to be considered in passing thereon, or to point out the same by appropriate reference, or to attach as exhibits to his exceptions those portions of the evidence relied on to support the exceptions, is a sufficient, reason, in an equity case, for refusing to approve the exceptions of fact and for overruling the exceptions of law. Orr v. Cooledge, 125 Ga. 496 (54 S. E. 618).” Winkles v. Simpson Grocery Co., 132 Ga. 32 (63 S. E. 627) ; McCord v. City of Jackson, 135 Ga. 176 (4), 177 (69 S. E. 23).

in)) Certain other exceptions to the auditor’s report depend for their determination upon the evidence. At the close of the exceptions of fact iffcsre was the following statement: “Plaintiff hereto attaches a brief ®f ail the testimony material to his exceptions, which brief is referred to as part of each exception as if the testimony was included in the ex-cepl&m.” The brief covered seven typewritten pages, containing evidence ef a number of witnesses on different matters, and also documentary evidence. Held, that, under the ruling quoted in the second headnote, the trial judge did not err in refusing to approve such exceptions of fact or in overruling such exceptions of law.

(6) No exception which is sufficiently made in this case requires a reversal.

Judgment affirmed.

All the Justices concur.