Opinion
36120.
DECIDED APRIL 27, 1956.
Action on note. Before Judge Manning. Cobb Superior Court. January 5, 1956.
Frank D. Holcomb, for plaintiff in error.
1. By the terms of Code § 10-301 all exceptions to an auditor's report "shall clearly and distinctly specify the errors complained of"; and, where in an action at law, exceptions, of law and fact to an auditor's findings and rulings, recite that the findings and rulings as "set forth in Paragraphs [giving the numbers]" of the rulings and findings upon the law and the issues of fact in the auditor's report are excepted to on the ground that these rulings and findings are contrary to the evidence, and that certain evidence was improperly excluded, but recite none of the evidence necessary to a clear understanding of the exceptions, the exceptions are not sufficiently specific and the trial court does not err, upon demurrer thereto, in sustaining the demurrer and dismissing such exceptions. Loftis v. Hubbard, 42 Ga. App. 829, 830 ( 157 S.E. 704), and citations.
2. The trial court's dismissal of the exceptions for such lack of specificity was all the more accurate where it appears that the auditor filed no brief of the evidence with his report. While his failure to file such report would be ground for a motion to recommit the report to him to remedy this defect, it is not ground for exception to the report. Code § 10-305; Southern Pine Co. v. Dickey, 136 Ga. 662 ( 71 S.E. 1110); Smith v. Wilkinson, 143 Ga. 741 ( 85 S.E. 875).
Judgment affirmed. Gardner, P. J., and Townsend, J., concur.
DECIDED APRIL 27, 1956.
Dudley Moore filed suit against Dewey Smith, alleging that the defendant was indebted to the plaintiff in a stated sum on a series of promissory notes. The defendant filed his answer and plea of total failure of consideration. Subsequently, upon motion of the defendant, the case was referred to an auditor, who made the following report:
"1. The plaintiff's counsel moved to strike the defendant's plea in answer and petition opening default, which had been previously allowed by the court. This motion the auditor disallowed because he is without authority to entertain such a motion.
"2. Plaintiff's attorney objected to defendant's counsel's cross examination of plaintiff concerning insurance policies issued in 1952, which objection was sustained by the auditor.
"3. The auditor made a ruling that any evidence pertaining to failure of consideration, which purported to show that the consideration failed prior to the execution of the series of notes, as set forth in the plaintiff's petition, and was the basis of plaintiff's action, would not be considered in evidence.
"4. After hearing the defense and argument of counsel, I find that the main questions involved are questions of fact. I further find that the plaintiff has proved his claim to the satisfaction of the auditor.
"I therefore find in favor of the plaintiff, Dudley L. Moore, on the issues of fact in the case, and against the defendant, Dewey Smith, in the principal sum of $1,860 and interest in the amount of $162 and attorney fees at 10% in the amount of $60 with the cost of suit.
"5. I clarify my findings in 1, 2, and 3 as above set forth as findings of law, and those set forth in Paragraph 4 as my findings upon questions of fact.
"I attach to this report a copy of the evidence adduced on the trial."
To the auditor's report the defendant filed the following exceptions:
"1. Exceptions of law. (a) Defendant excepts to the ruling and judgment of the auditor as set forth in Paragraph 3 of his report in which he excluded any evidence pertaining to consideration, which purported to show that the consideration failed prior to the execution of notes, as set forth in plaintiff's petition. Defendant says that such evidence was proper and instant in the case and should have been heard and taken into consideration by the auditor. (b) Defendant excepts to the ruling and judgment of the auditor as set forth in Paragraph 4 of his report in which his findings in favor of the plaintiff, and that the plaintiff has proved his claim to the satisfaction of the auditor, on the grounds that such findings are contrary to the evidence.
"2. Exceptions of fact. (a) Defendant further excepts as matter of fact, to the findings of the auditor as set forth in Paragraph 4 of his report, and particularly to that portion of the auditor's report in which he finds generally in favor of the plaintiff, certain specified sums, without specifying therein the portion of the evidence or otherwise identified by him as "allowed" or "disallowed" by the calculations resulting in the findings of such balance. (b) Defendant excepts to the entire report of the auditor for the reason that no report of the evidence including testimony submitted and received before the auditor is included therein for the information of the court or the parties."
Upon motion of the plaintiff that the defendant's exceptions to the auditor's report be disallowed because they are vague, indefinite, and incomplete, the trial court dismissed the exceptions and entered a final judgment for the plaintiff.
In this bill of exceptions in this court, the defendant assigns error upon the dismissal of the exceptions to the auditor's report, and upon the entry of final judgment in favor of the plaintiff.