Opinion
35335.
DECIDED NOVEMBER 9, 1954. REHEARING DENIED NOVEMBER 30, 1954.
Action on account. Before Judge Calhoun. Columbus City Court. June 18, 1954.
Arthur F. Copland, Paul Blanchard, for plaintiff in error.
Swinson, Elliott Schloth, contra.
The court did not err in refusing to recommit the auditor's report and in entering final judgment against the defendant.
DECIDED NOVEMBER 9, 1954 — REHEARING DENIED NOVEMBER 30, 1954.
Steel Builders, Inc. (whom we shall hereinafter refer to as the plaintiff), filed a petition against George L. King (whom we shall call the defendant). The records and facts which we consider sufficient for a determination of the case are taken substantially from the bill of exceptions as follows: On June 18, 1954, in the City Court of Columbus before the judge of said court then and there presiding, there came on to be tried the case of Steel Builders, Inc., against George L. King. Said suit was an action on account in which an answer and cross-action were filed by the defendant. There were two amendments to the petition and an amendment to the answer and cross-action. By stipulation and agreement and order of the court, the case was referred to an auditor, William Marion Page, for the purpose of investigating the same, passing on all questions of law and fact arising therein, and reporting his findings to the court. The auditor, honorable William Marion Page, filed his report on May 19, 1954, and said report was adverse to the defendant George L. King, who on June 8, 1954, within twenty days therefrom, filed a motion with the court to recommit the auditor's report, on the several grounds set forth in said motion. After notice to the plaintiff's attorneys said motion was set down for hearing on June 14, 1954, (and said hearing was begun on said date and finally concluded on June 18, 1954, as stated aforesaid), at which time the plaintiff filed a motion to deny and dismiss defendant's motion to recommit the auditor's report. During the progress of the hearing, evidence was submitted to the court without the intervention of a jury upon the issues raised by the plaintiff's said motion to dismiss and deny the defendant's motion to dismiss and deny the defendant's motion to recommit.
The following is a brief of the evidence adduced upon the trial of the plaintiff's said motion: W. M. Page, a witness introduced by the plaintiff, testified as follows. Direct examination: "I am W. M. Page the auditor in the case entitled Steel Builders, Inc., versus George L. King. As the result of a hearing had, I prepared and filed an auditor's report on May 19th, 1954, which is now a portion of the report for the City Court of Columbus. Prior to the filing of this report I had a discussion with Mr. Ralph Holleman and Mr. William J. Schloth, representing the parties prior to the filing of this report. This was in Mr. Holleman's office in the First National Bank Building on the same day that I later filed the report. At that time I had prepared the auditor's report, and desired to give counsel a preview of the report before filing it with the court and to discuss the report with them, which was done at that time. I do not recall the Code sections by numbers that we discussed but I do recall that the Code on the title of `Auditors, Title 10' was pulled and the provisions were checked by the three of us, and the point was made that the form of the report perhaps did not conform literally to the wording of the statute. Among other things it was specifically mentioned that the brief or a transcript of the testimony was not attached. We discussed these features of the report, the shortcomings, such as they were, and with the result that it was agreed by both counsel concerned and by myself that the formalities would be waived, that is, the requirements of the statute in so far as the precise form of the report would be waived; it was also agreed that the reported testimony which had been taken by Mr. Perkins, the court reporter, would not be transcribed because of the length of the hearing and the prohibitive cost; it was agreed that the transcriptions would not serve any useful purpose, and that expressly the fact that the transcript or the brief of testimony was not attached to the report was waived by both counsel. Following that conference between counsel for the plaintiff and the defendant and myself, I filed the report later in the same day, after serving copies upon both counsel and giving them notice that the report was to be filed. Question. `Did — was an agreement entered into between counsel waiving the form of the report as to separating the findings of facts from the findings of law?' Answer. `I don't recall that that specific point was dealt with. There was a waiver — a general waiver of all technical procedural and formal requirements in so far as pertained to the report. The report was accepted in the form in which presented to counsel at that time. As far as the first objection goes, the objection in the motion to recommit that you have referred to, the auditor was not called upon at any stage of the hearing to make a finding of law. All of the findings that were reported and all of the findings that were made were findings of fact. The only finding of law that could in any sense be such a finding was on one occasion during the progress of the hearing where on my own motion I excluded certain testimony that was offered by the plaintiff, the testimony of one Willie Mitchell, a colored man, with respect to a matter which I considered extraneous to the issue under consideration. There was no occasion otherwise for me to rule upon a question of law since there was no objections made by either counsel at any stage of the hearings before me.' By the Court: `With an adverse ruling — was an adverse ruling made as against the defendant in that case?' Answer. `No, the ruling was adverse to the plaintiff.'" On cross-examination, he testified: "This conversation was in Mr. Holleman's office and Mr. King was not present. The whole matter was accomplished at that time and took at least forty-five minutes and perhaps an hour. We went through the report paragraph by paragraph. Mr. Holleman did not call Mr. King over the phone or get in touch with him in my presence. Mr. Holleman had not had any forewarning as to the contents of the report prior to our conference so I do not believe that he could have talked with Mr. King about the contents of the report before this discussion. What Mr. Holleman did was as attorney of record for Mr. King, which he did without conferring with Mr. King. Question. `Did you all reduce this transcript — I mean your stipulation to any further writing other than embody it in the report itself? I mean, did it appear in the record anywhere?' Answer. `No, sir, it was not considered necessary. Both counsel complimented the auditor on the report and felt that it would be acceptable in the form in which presented.' At the conference the Code section dealing with the attachment with the brief of evidence was specifically brought to my attention, including Code §§ 10-201 and 10-305. We covered the chapter, as I recall, from beginning to end, from the first section of the chapter right on through. With respect to the evidence it was agreed specifically that both parties waived the requirements that a brief of the oral and documentary evidence submitted by the parties would be reduced to writing and made a part of the report. The stipulation was much broader as I have said. That any and all formal or technical requirement or irregularities such as might have been present in the report were waived. It was not intended to prevent the transcript from ever being made if either party was dissatisfied with the report. It was not the intention to preclude an appeal. It was acknowledged that either party may be dissatisfied with any one of the specific findings and in which case — now I am going afield here and perhaps stating my own understanding rather than the stipulation, but the idea was if any party was dissatisfied with the substance rather as contrasted with the formal requirement of any particular finding then it would be his privilege to have the record, or so much of the record as may be required reduced to writing in order for him to consider and take such action as may be required. Maybe — either party may have the record transcribed or so much thereof as may pertain to his specific complaint in order for such consideration as he may want to give it. The agreement was not to make a brief of the evidence in my report. Question. `Does it go any further than that?' Answer. `That the testimony would not be briefed by me nor would a transcript be furnished by the reporter and that no objection would be made by either party to the report from a standpoint of form or as contrasted with substance with respect to any particular finding.' If I made an erroneous conclusion from the evidence the appeal as to that would not be precluded."
Ralph M. Holleman sworn for the plaintiff testified as follows on direct examination: "I am Ralph M. Holleman and I represented the defendant in a case entitled Steel Builders, Inc., versus George L. King pending in the City Court of Columbus being case number 1264, I represented him on May 19th, 1954 in that case and was his attorney of record at that time. I stopped representing Mr. King on the 10th or 11th of June. He says the 8th, that is probably what it is. I have heard the testimony of Mr. Page the auditor as to the conference and what took place in my office on May 19th, 1954, prior to Mr. Page filing the auditor's report and I agree that his testimony is substantially what occurred at that time. Mr. Page pretty well covered it and I have nothing to add."
On cross-examination, the witness testified: "I did not confer with Mr. King at that particular time and I entered into the stipulation without conferring with him, on that day. The stipulation was — so far as the formality of the record — the auditor's report — was concerned as Mr. Page has just told you we checked over those sections in the Code and Mr. Schloth and I agreed with Mr. Page that we would waive all formalities and waive the necessity of having to make a brief of the transcript evidence to be attached to the report at that time, now, of course, as he said before we weren't precluded if any party wanted to go to the expense to make the transcript later on, that was up to them. We didn't intend to prevent a transcript from being made but it was not required to be attached to the auditor's report at that time. Question. `Did you intend by your agreement or stipulation that either party would be cut off from any appeal or objection he might have to the auditor's report?' Answer. `Well, of course I told Mr. Page and Mr. Schloth that I didn't know what Mr. King's attitude would be, but so far as I was concerned I was — I thought it was a good verdict. As he said — I mean a good report — as he said a while ago he was complimented from the evidence, that what I told him and Mr. Schloth, that so far as I was concerned I wouldn't make any objections.' Question. `There was no stipulation?' Answer. `Oh, no.' Question. `Either party would be cut off?' Answer. `Well, that part of it wasn't — Question. `Wasn't discussed?' Answer. `Wasn't entered into, no, sir.' Question. `Wasn't even discussed was it?' Answer. `That's right.'"
On redirect examination, the witness testified: "Question. `Mr. Blanchard's question was very broad, and if I understand it correctly, he asked you if as a result of our agreement and conference at this particular date on the 19th if either party would be cut off from any appeal or objection. Now it is my understanding that we would cut off from appeal or objection as to forms of procedure and form, not matters of substance, is that correct?' Answer. `That's correct, that's right.'"
George L. King, defendant, after being sworn testified on his own behalf as follows: "I am George L. King, the defendant in this case. I have heard Mr. Holleman and Mr. Page testify as to the stipulations that were entered into in this case, as to the auditor's report. I was not informed as to that stipulation, I have never consented to it."
On cross-examination, he testified: "I don't recall a single time Mr. Holleman my counsel tried to get in touch with me following the hearing and on through the week following the 19th. If he called me at my home or office I don't know it. I called him; I called him in regard to my suit; I had several conferences with him. After the hearing I called him and went up there. I called Mr. Holleman and Mr. Page the same day and then I talked to Mr. Holleman several different times and then found out what the verdict was but not until just a few days before the period was up that you could appeal it. I hired these gentlemen a day or two before the period was up. He showed me the auditor's report a day or two before I found out what the report was — what the verdict was, that he was going to issue a verdict that couldn't anything be done about it. I would say that I discussed it fairly well with Mr. Holleman. He gave me a report that I had to read. I don't recall that Mr. Holleman made an effort to get in touch with me between May 19th and June 6th. If he did I don't have a record of it. Mr. Perkins called my home once and it was a day or two later before I had a chance to get down there and give him his money."
Upon the conclusion of said testimony, the court then and there ruled and on said 18th day of June, 1954, entered judgment that "All procedural grounds made by the defendant requesting that said auditor's report be recommitted had been waived by counsel for both of said parties by stipulation and agreement and ordered that said auditor's report be made the judgment and decree of the court and that plaintiff be awarded judgment in the amount of $998.06 and costs" and to this said judgment of the court George L. King, the defendant, then and there excepted, and now excepts and assigns said ruling and judgment as error and as being contrary to law and says that said court should have granted the defendant's motion to recommit said auditor's report upon each and all of the grounds therein taken and set out in said motion to recommit.
The plaintiff filed two amendments to its petition, and the parties entered into a stipulation and an agreement for appointment of an auditor as follows: "Steel Builders, Inc. v. George L. King. Whereas, the captioned suit on account is pending in the City Court of Columbus, Georgia; and,
"Whereas, defendant anticipates a cross-action involving claims for commissions, fees and other matters relating to a period of employment of defendant by plaintiff; and,
"Whereas, said matters will necessitate an investigation which will consume considerable time and embrace many items requiring references to many books of account and other documents and explanations of items and entries therein; and,
"Whereas, the parties have submitted the aforementioned statement of facts to Honorable Hubert Calhoun, Judge of the City Court of Columbus, Georgia, and the Honorable Hubert Calhoun, together with counsel representing both plaintiff and defendant are unanimously of the opinion that the foregoing facts constitute a matter which should be heard before an auditor:
"Now, therefore, said parties stipulate and agree as follows:
"1. That Honorable William Marion Page, attorney at law, Columbus, Georgia, hereby act as auditor in said case with all powers and duties appropriate thereto, and further that he shall be compensated in the amount of no less than three hundred dollars ($300) and no more than five hundred dollars ($500) for his services in connection with this audit. The $300 shall be paid fifty (50) per cent by each party on March 16th, 1954, with the remaining portion of said fee to be due said auditor to be shared on a fifty (50) percent basis by each party, said portion of said fee, if any, due said auditor to be the subject of future agreement by and between said auditor and attorneys representing the respective parties, the firm of Swinson, Elliott Schloth representing the plaintiff, and Attorney Ralph M. Holleman representing the defendant.
"2. It is further stipulated and agreed that the parties subject to the payment of the aforementioned retainer in the amount of $300, will hold a pretrial conference in the office of Honorable William Marion Page at 10 o'clock a. m., March 17th, 1954. This 16th day of March, 1954. Swinson, Elliott Schloth, Plaintiff's Attorneys. Ralph M. Holleman, Defendant's Attorney."
The order of the court on the above reads as follows: "Upon reading and considering the foregoing agreement and stipulation and as a result of a conference with attorneys representing plaintiff and defendant, it appears that truth and justice of the case may best be arrived at, together with economy of time and expense, by reference of said case to an auditor. It is, therefore, ordered and adjudged that the foregoing agreement and stipulation be hereby made the order of this court, and the Honorable William Marion Page is hereby appointed auditor for the purpose of investigating the same, passing on all questions of law and fact arising therein. Let said auditor report his findings to this court on or before April 16th, 1954. This 16th day of March, 1954."
The defendant filed his plea and answer and amended the same, which included a cross-action against the plaintiff. The parties entered into another agreement and stipulation as follows: "Now comes the captioned parties, by and through their duly constituted attorneys of law, and stipulate and agree that the auditor, Honorable William Marion Page, will hear testimony on the 17th day of May, 1954 beginning at 10 o'clock a. m., at the Muscogee County Courthouse, which testimony will be reported, the costs thereof being shared equally between the parties, said testimony to concern itself directly with the following questions only — the submission of other issues, if any, will be at the direction and request of the auditor at a later date to be determined by him: (1) Does defendant owe plaintiff $595.74, or any other amount; as a result of advances and commissions earned between April 18, 1952 and June 20, 1952? (2) Does defendant owe plaintiff the sum of $447.94, or any other amount, as a result of purchases by defendant from plaintiff between July 21, 1953 and August 21, 1953? (3) Does defendant owe plaintiff the sum of $37.50, or any other amount, as a result of a loan made by plaintiff to defendant on June 24, 1952? (4) Does defendant owe plaintiff the sum of $758.82, or any other amount, as a result of costs to plaintiff in excess of $3,516.75 on Muscogee Store Equipment Company contract dated April 13, 1953? (5) To what extent were the parties bound by their agreement dated May 6, 1953? (6) What was the duration of the employment of defendant by plaintiff under the terms of the contract dated November 1, 1952? It is agreed that the beginning date of the contract was November 1, 1952. The position of plaintiff is that the contract terminated July 1, 1953, and it is the position of the defendant that the contract terminated August 1, 1953. (7) Does plaintiff owe defendant the difference between the amount paid him and $8,000 under the guarantee contained in the contract dated November 1, 1952? In making this determination should the following sales be credited to defendant on his volume — Madison Square, Swearinger, Muscogee County Schools, and Jordan Contracting Company? (8) Did the failure of defendant to complete his second six months employment period which began May 1, 1953, disqualify him from earning all 1% commissions for that period of employment under the terms of the contract of November 1, 1952? Swinson, Elliott Schloth, Attorneys for plaintiff. Ralph M. Holleman, Attorney for defendant."
The auditor, after taking evidence, and after argument of counsel, filed the following report: "This action heretofore referred to me as auditor came on for hearing before me on May 17, 1954 pursuant to agreement and stipulation of counsel made and filed on May 8, 1954, both parties being present and represented by their respective attorneys of record. Evidence and testimony were presented, and both parties were fully heard upon all issues referred to in said agreement and stipulation. After full and careful consideration of the evidence and testimony, I herewith report my findings and recommendations, to wit:
"1. I find that defendant is indebted to plaintiff in the amount of $446.70 by reason of advances made by plaintiff over and above commissions earned, between April 18, 1952 and June 20, 1952, said amount being arrived at as follows:
"Advances ------------------------------------------------------- $900.00 "Commission on Job No. 407 ---------------------------- $115.86 "Commission on Job No. 396 ---------------------------- 188.40 "Commission Minute Car Wash --------------------------- 149.04 453.30 ------- ------ "Balance --------------------------------------------------- $446.70 "2. I find that defendant is indebted to plaintiff in the amount of $409.55 by reason of purchases made by defendant from plaintiff between July 21, 1953 and August 21, 1953, said amount being arrived at as follows: "Claimed by plaintiff (Exhibit `A' of petition) -------- $447.94 "Less cost of welding job included in price, which was not done --------------------------------- 38.39 ------- "Balance -------------------------------------- $409.55 "3. I find that defendant is not indebted to plaintiff by reason of any loan allegedly made on June 24, 1952."4. I find that defendant is indebted to plaintiff in the amount of $141.81 by reason of excessive costs to plaintiff on Muscogee Store Equipment Company contract dated April 13, 1953, said amount representing commissions on said contract which defendant agreed to refund in the event plaintiff sustained a loss in its performance thereof.
"5. I find that settlement was made between plaintiff and defendant on May 6, 1953, as to commissions earned by defendant with respect to each of the following contracts to wit:
Amount of "Contract Date Contract Muscogee Store Equipment Co., 11/13/52 ------------- $ 5,283.00 Ida Cason Callaway, 12/1/52 ------------------------ 4,691.00 Lawson AFB, 1/15/53 -------------------------------- 2,894.00 W. G. Salter --------------------------------------- 8,220.00 Dimon King, 12/12/52 ------------------------------- 22.10 Walter McClellan, 12/29/52 ------------------------- 900.00 Standard Printing Co., 1/27/53 --------------------- 1,570.00 Bass Lewis, 1/30/53 -------------------------------- 7,300.00 Leary and Green, 2/6/53 ---------------------------- 12,395.00 Columbus Country Club, 3/2/53 ---------------------- 3,955.00 A. L. Bishop, 3/19/53 ------------------------------ 180.55 Kinnett Dairies, 3/23/53 --------------------------- 518.00 Passmore, 4/1/53 ----------------------------------- 4,651.00 trawick Sales Co., 4/3/53 -------------------------- 150.00 L. W. Mitchell, 4/11/53 ---------------------------- 4,144.00 R. H. Wright and Associates, 4/11/53 --------------- 12,823.00 *Muscogee Store Equipment Co. 4/13/53 -------------- 4,465.00 Columbus Cabinet Co., 4/29/53 ---------------------- 2,450.00 Colwell Gro. Market, 11/14/53 -------------------- 790.00 Leary and Green, 2/9/53 ---------------------------- 65.00 Leary and Green, 3/27/53 --------------------------- 246.00 Leary and Green, 4/16/53 --------------------------- 58.65 Henry Hyatt, 3/24/53 ------------------------------- 240.00 Schwobilt, 3/23/53 --------------------------------- 1,715.00 Ferguson Sand Gravel, 4/2/53 --------------------- 1,591.80 Norris Cattle Co., 12/12/52 ------------------------ 588.52 Col. Crawford, 12/29/52 ---------------------------- 263.00 Columbus Lumber Co., 1/29/53 ----------------------- 156.17 Standard Printing Co., 2/10/53 --------------------- 30.00 Muscogee Store Equipment Co., 5/7/53 --------------- 294.00 "I further find that settlement on the Muscogee Equipment Co. contract indicated by asterisk above was conditioned by a separate understanding between the parties, which resulted in my finding hereinabove set forth in paragraph 4; otherwise, said statement was to the effect that said settlement was full and final, and binding upon both parties for all intents and purposes, with respect to each contract hereinabove listed."Said settlement was in the amount of $1539.04, of which amount $1336.04 (less Social Security deduction of $20.04) was paid by plaintiff's check to defendant, and the balance of $203 was paid by plaintiff's assumption of a personal debt in like amount owed by defendant to Southern Hardware Company.
"6. I find that the employment of defendant by plaintiff under the contract dated November 1, 1952 (Exhibit `A', defendant's cross-action) commenced November 1, 1952 and terminated July 1, 1953.
"7. I find that defendant is not entitled to credit on his volume with respect to the Madison Square, Swearinger, Muscogee County Schools and Jordan Contracting Company sales; that consequently, the personal sales of defendant did not equal or exceed $100,000 during his employment under the contract of November 1, 1952, and plaintiff is therefore not indebted to defendant upon the $8,000 guarantee set forth in said contract.
"8. I find that defendant's failure to complete his second six months employment period which began May 1, 1953, did not disqualify him from earning all 1% commissions for that period of employment under the terms of the contract of November 1, 1952.
"9. By the admission of both parties, final settlement and accounting has not yet been made between plaintiff and defendant as to various additional sales or contracts (other than those listed in paragraph 5 above) negotiated between November 1, 1952 and July 1, 1953, and with respect to which defendant may be entitled to commissions. Further, said commissions are not sued for in this action. Through no fault of defendant, no evidence or testimony was heard by me with respect to the following items claimed in defendant's cross-action, to wit:
"Painting of 1 carport ----------------------------- 30.00 "Due `from last settlement on Leggett Building' ---- 250.00 "It is my recommendation that judgment be entered without prejudice to defendant as to the matters mentioned in this paragraph 9. "10. In summary, I recommend that judgment be entered in favor of plaintiff against defendant in the following amounts, to wit: "From Paragraph 1 above _________________________ $446.70 "From Paragraph 2 above _________________________ 409.55 "From Paragraph 4 above _________________________ 141.81 ------- "Total __________________________________ $998.06 — together with costs, and without prejudice to defendant as to the matters mentioned in Paragraph 9 above."Respectfully submitted, this 19th day of May, 1954.
W. M. Page, Auditor. "I have this day given written notice of the filing of the foregoing report by delivering true copies thereof to the attorneys of record for each party to the action. This May 19, 1954. W. M. Page, Auditor. "Filed in office May 19, 1954 Elizabeth Hill, Deputy Clerk, City Court Muscogee County, Georgia."After the report of the auditor, the original attorney, Holleman, was replaced by present counsel and on June 9, 1954, a motion was filed before the Judge of the City Court of Muscogee County to recommit the report of the auditor. That motion is as follows: "Now comes George L. King, the defendant in the above stated case and to whom the auditor's report filed on the 19th day of May, 1954, was adverse and within the time provided by law moves the court to recommit said report for the following reasons to wit:
"1. The auditor failed to define and designate his findings of law and his findings of fact, and the courts should recommit the same to him directing him to separate his findings of law and findings of facts designating each.
"2. The auditor failed to reduce to writing a brief of the oral and documentary evidence submitted by the parties in that the auditor did not report in his audit even a shred of the evidence submitted by the parties, his said report being absolutely silent about what evidence was submitted but merely states that evidence was submitted to him and therefore his report should be recommitted so that the evidence adduced upon the hearing will appear in his report and therefore the court can determine if his findings are correct and based upon any evidence — he finds that advances were made in the sum of $900 without stating upon what evidence, he finds a settlement was made on May 6th, 1953, without stating upon what evidence he so found, and this is true of each and every finding in his report, with the result the auditor has rendered a judgment and not a report to this court.
"3. The auditor failed to divide and separate into different divisions or paragraphs the findings of fact from the conclusions of law and to place each conclusion of law in a different paragraph from each finding of fact, as said report only classifies and states findings and conclusions on the law and facts under distinct heads and separate paragraphs, but divided and separated it only according to the different groups and divisions of subject matters.
"4. Although the testimony adduced upon the hearing before the auditor was stenographically reported by the Honorable R. O. Perkins, the official Court Reporter of the Muscogee Superior Court, said testimony has never been transcribed and neither has a brief of the evidence been included in the auditor's report so that the auditor has totally failed to report the evidence.
"Wherefore, George L. King prays that the auditor's report be recommitted to the auditor as hereinabove set out and further prays that a rule nisi issue calling upon the plaintiff to show cause why this motion should not be granted."
The order of the court on this motion is as follows: "The above and foregoing motion having been presented, read and considered; it is ordered that Steel Builders, Inc., show cause before me at 10 o'clock a. m. on the 14th day of June, 1954, at my office at the courthouse in Muscogee County, Georgia, why the motion should not be granted as therein prayed for.
"This the 9th day of June, 1954."
On the date set for hearing counsel for the plaintiff filed the following motion to dismiss the motion of the defendant to recommit: "Comes now Steel Builders, Inc., hereinafter designated as `Plaintiff,' and files this its motion that the court deny and dismiss the motion of defendant to recommit this case to the auditor; and for cause of such motion, says:
"Plaintiff moves that this court enter an order denying and dismissing the motion of defendant to recommit this case to the auditor, for the following reasons and upon the following grounds:
"First: Defendant failed to serve plaintiff or plaintiff's attorneys with a copy of his motion to recommit auditor's report prior to filing, pursuant to the requirements of Georgia Code, Section 81-301 as amended. (See Georgia Laws 1952, page 162). This defect shows on the face of the pleadings, that the motion was filed June 8, 1954, and plaintiff's attorneys were served June 9, 1954.
"Second: As inducement for this ground of this motion, plaintiff avers that:
"(1) Each of the four grounds of the motion of defendant to recommit the case to the auditor are based upon procedural requirements of the law.
"(2) Prior to May 19, 1954, the date of the filing of the report of the auditor, attorneys for plaintiff and attorney for defendant entered into a verbal agreement or stipulation, and the same was not put in writing and filed as part of the written record in this case covering various procedural requirements, said waiver including, among other points, all four grounds of the present motion to recommit. These grounds cannot now be relied upon in the event of exceptions or objections to the report of the auditor or further proceedings in the case. Plaintiff offers to establish the truth of the foregoing averment by the testimony of witnesses under oath produced to this court.
"Based on the waiver of said procedural requirements or objections, if the testimony establishes the same, plaintiff asserts that the motion of defendant to recommit the report of the auditor is insufficient in law, in that the same fails to set forth either a legal or equitable ground authorizing the court to recommit the case to the auditor.
"Third: In the event the procedural requirements referred to in the motion to recommit the report are waived as set forth herein, the motion of defendant to recommit the report of the auditor is insufficient in law, in that said motion, otherwise, fails to set forth any fact or any law, which would show that, if an order of denial of the motion to recommit were entered by this court, defendant would sustain injury." Counsel for the plaintiff, before filing the motion to dismiss the motion to recommit, served a copy of the same on counsel, Holleman (the original attorney), the auditor, and counsel for the defendant. The trial court thereafter, on the date set for hearing, heard evidence as set forth in the facts related above as to the motion to dismiss the motion to recommit. The order of the trial court is as follows: "The attached report of the auditor, Honorable William Marion Page, having been filed with this court on the 19th day of May. 1954, and more than twenty days having passed since said report was filed with this court, and hearing having been had on the motion of defendant to recommit said auditor's report having been heard this date, there being present the aforementioned auditor and counsel representing both parties, and it being shown that all procedural grounds made by defendant requesting that said auditor's report be recommitted had been waived by counsel for both of said parties, parties by stipulation and agreement:
"Now, therefore, it is hereby considered, ordered and adjudged that said auditor's report be made the judgment and decree of this court, and plaintiff is hereby awarded judgment in the amount of $998.06 and costs in the amount of $35.60 are hereby assessed against defendant. This 18th day of June, 1954."
On this final judgment the defendant assigns error.
1. The petition as amended and the plea and answer and cross-action of the defendant contain many items and involve much evidence. As shown hereinbefore, the auditor had a conference with the attorney for the plaintiff and attorney Holleman, the original attorney representing the defendant. The purpose of the conference of the auditor with the attorneys was to read and discuss a report. The evidence was stenographically reported. Counsel for both parties agreed that the auditor's report was satisfactory, and that no further finding of law or fact was necessary and the form of the report was satisfactory and agreed that the evidence need not be attached, since it was voluminous and (as the auditor put it) the expense was prohibitive. The expense, including the fee of the auditor and the stenographic report, was agreed upon. The parties agreed to share such expense equally. It is revealed by the record that, if either party desired to make an appeal from the report of the auditor, such party could have all, or such portions of the evidence as such party desired or determined necessary to such appeal — the party desiring such evidence to be responsible for the expense of procuring it.
2. Counsel for the defendant in his brief cites Code §§ 10-201, 10-203, and 10-305. These sections do not bear out the contentions of the defendant under this record. There is nothing in these sections nor in Code § 24-3340, also cited, to provide that the form of the auditor's report, agreed to by all parties and under the stipulations, is void and illegal. There is nothing in the decision of Snelling v. Darrell, 17 Ga. 141, to show that an agreement as to the form of an auditor's report cannot be dispensed with by agreement of the parties. Counsel for the defendant contend that Hamilton v. Conyers, 25 Ga. 158, holds that the brief of evidence is a part of the pleadings and that pleadings cannot be waived. We do not interpret that decision to mean what counsel contend under the facts of this case. Arendale v. Smith, 107 Ga. 494 ( 33 S.E. 669), and Greer v. Andrew, 133 Ga. 193 ( 65 S.E. 416), cited by counsel, are not in point under the facts of the instant case. The same is true of Clements v. Fletcher, 161 Ga. 21 ( 129 S.E. 846). Our attention is called also to Southern Pine Co. v. Dickey, 136 Ga. 662 ( 71 S.E. 1110). We find no way to apply this decision to aid counsel, when we compare the facts of that case with the facts in the instant case. Our attention is called to Reynolds v. Martin, 55 Ga. 628. This case is not controlling. We are not discussing these cases in detail. We have read them carefully and according to our opinion they have no similarity in facts to the instant case. The auditor did find and pass upon the eight questions submitted to him by the stipulation and agreement.
3. We understand the law to be that a stenographic report of the evidence and a brief of the evidence are interchangeable under Code § 70-301 as amended by Ga. L. 1953, pp. 440-445. At any time after the election to do so, counsel could have had prepared a complete or partial record of the evidence for his use or he could have asked the court to require an additional report. Moreover, we might add in this connection that the defendant shows no harm to him by reason of the judgment of which complaint is made. See, in this connection, Candler v. Bryan, 189 Ga. 851 (3) ( 8 S.E.2d 81).
Regarding the eight questions before the auditor for answer, counsel for the defendant contends that these questions, or some of them, go beyond the pleadings, and are therefore improper. The issues in a case are generally made by the pleadings. Litigants may specify the issues to be tried so long as issues are confined to those properly triable before the authority before which the case is being heard. Counsel, as to procedural matters, has the authority to represent his client, in the absence of the client, and without his client's authority or consent. See generally on this question, 7 C. J. S. 917, § 100. As somewhat analogous, see Sullivan v. Federal Farm Mortgage Corp., 65 Ga. App. 193 ( 15 S.E.2d 551).
The court did not err in refusing to recommit the auditor's report and in entering final judgment against the defendant.
Judgment affirmed. Townsend and Carlisle, JJ., concur.