Opinion
20987.
ARGUED SEPTEMBER 15, 1960.
DECIDED OCTOBER 6, 1960. REHEARING DENIED OCTOBER 18, 1960.
Equitable accounting. Fulton Superior Court. Before Judge Shaw. May 20, 1960.
John H. Hudson, Pauline E. Cousins, for plaintiff in error.
James L. Flemister, pro se, Moreton Rolleston, Jr., contra.
Upon the former appearance in this court ( Mendenhall v. Kingloff, 215 Ga. 726, 113 S.E.2d 449) the judgment allowing auditor's fees in excess of the maximum allowed under Code § 10-502 was reversed upon the ground that the evidence did not show consent of the parties to an allowance of costs in excess of that maximum. Upon the return of the remittitur, a stipulation of counsel consenting to fixing costs in excess of Code § 10-501 was presented to the judge, and, based thereon, he entered an order allowing auditor's fees in excess of the statutory maximum. The exception is to that judgment. Held:
When the case went back to the lower court it was analogous to a reversal of a judgment because of insufficient evidence. It was in order for retrial, and introduction of evidence was proper. The evidence authorized the judgment, and it is not erroneous as contended. The decisions in the brief from Heard v. Heard, 8 Ga. 380 (1), to Allen v. Bone, 202 Ga. 349, 351 ( 43 S.E.2d 311); and Estes v. Estes, 206 Ga. 530 ( 57 S.E.2d 587), and Hartley v. Hartley, 212 Ga. 62 (2) ( 90 S.E.2d 555), cited and relied on by counsel for the plaintiff in error, are inapplicable to the facts of this case.
Judgment affirmed. All the Justices concur.