Anderson v. Usher

¶1The complainants filed their bill against the defendant as executor for an account, relief, etc. The court appointed an auditor to examine the defendant’s accounts, hear evidence in relation thereto, and make a report thereon, which was done. When the auditor made his report, as appears from the record, the same was allowed and approved by the court, neither party excepting to the judgment of the court allowing and approving the auditor’s report. The defendant then filed thirteen exceptions to it, which, by the agreement of the parties, was heard before the presiding judge, who was to act both as judge and jury in passing upon the same. The court, from the evidence before it, found against the 2d, 3d, 4th, 5th, 6th, 8th, 10th, 11th and 12th exceptions, and *575against part of the 1st and 9th exceptions, as appears from the finding and decree set forth in the record. The only evidence offered before the court, on the hearing, to counteract the report of the auditor, was the following evidence of the defendant himself:

“ The Georgia and South Carolina bank bills turned over by me to the. receiver were received by me as executor of Usher along during 1860 and 1861. "When Confederate money came into circulation in the summer or fall of 1861, these bank bills were commonly regarded, and were so regarded by me, as more valuable, and for that reason I preserved them for the estate. Nobody wanted to borrow money then, and I did not want to lend those bank bills if I could have done so, because I-would have had to take pay in Confederate money.

“ After Confederate money came into general circulation, Avliich, I think, was in the fall of 1861,1 did not get in for the estate, nor in my own business, any other sort until Confederate money went up : it went up in 1865, when the surrender occurred. John S. Colbert is the brother of Mrs. Usher, widow of testator. The Usher place was worth very little to me' for rent while I had it in my possession — not near $500.00 a year. I rented it some of the time I had it. I did not get notes for all of the negro hire for the year 1865. I only got $2,650.00 worth of notes; for the balance of the negro hire for that year, included in my return, I never got any notes from the persons hiring them; they were to come and give me their notes, but did not do so. When the negroes were set free, some of the parties who had hired them refused to give notes. I did not try to collect money from them, for I thought it was useless. I never collected anything for negro hire for 1865.”

¶2The finding and decree were as follows:

“I find the first exception good in this, that the auditor did not allow the balance in the hands of the executor to be free from interest for the next year succeeding the making of each annual return, as the executor was authorized by *576law to hold this balance to meet the current expenses of the estate for the succeeding year.'

“ I find against the balance of this exception.

“ I find against the second exception.

“ I find against the third exception. There is an error in calculation on the return to which this exception refers, but that is corrected in this decree by a calculation made necessary by sustaining the first part of the first exception, and the thirteenth exception.

“ I find against the fourth exception.

“ I find against the fifth exception. There is an error in the calculation on the return to which this exception refers, but the error is corrected in this decree in the manner stated in reference to the third exception.

“ I find against the sixth exception.

“ I find in favor of the seventh exception. The amount paid is, by this decree, deducted from the return in which the executor is charged with the amount of these notes.

“ I find against the eighth exception.

“ I find in favor of the first part of the ninth exception. The auditor was right in charging rent, but he erred in charging compound interest on the amount of rent found due annually.

“ I find against the balance of this exception. The error of the auditor in charging compound interest is corrected by this decree, in which I have allowed the executor a credit for the overcharge of interest.

“ I find against the tenth exception, as the report of the auditor shows that the executor was credited with the amount set out in this exception, and the interest on the same.

“ I find against the eleventh exception.

“ I find against the twelfth exception.

“ I find in favor of the thirteenth exception. I have made a new calculation on each return, and have allowed the executor credit for the overcharge in the way of interest.

“After making the corrections in the auditor’s calculations, which were made necessary by sustaining the exceptions *577herein sustained, and allowing credits for the amount collected by the receiver, and not allowed in the auditor’s calculation, I find that there is due to complainants from ¥m. P. Anderson, executor, up to March 1,1876, thirty thousand and four hundred and seventy-eight dollars and fifty-seven cents, which amount it is ordered and decreed that complainants do recover of W. P. Anderson, with costs of suit.”

¶3March 12, 1877.

¶4To this finding and decree, Anderson brings his bill of exceptions, saying therein that it is error in this :

¶51. Insomuch as it finds against the first exception of defendant, Anderson, to the auditor’s report.

¶62. In finding against the second exception.

¶73. In finding against the third exception.

¶84. In finding against the fourth exception.

¶95. In finding against the fifth exception.

¶106. In finding against the sixth exception.

¶117. In finding against the eighth exception.

¶128. In finding against such part of the ninth exception as is specified in said finding and decree.

¶139. In finding against the tenth exception.

¶1410. In finding against the eleventh exception.

¶1511. In finding against 'the twelfth exception.

¶1613. In the aggregate sum found against Anderson in said finding and decree.

¶17And for which errors counsel for Anderson say that said judgment and decree should be reversed.

¶181. By the 3097th section of the Code, it is declared “that in equity causes, the court may refer any part of the facts to a master or auditor, and his report thereon shall be prima facie the truth after allowance by the court, either party having the liberty to except. But the final decision upon the facts shall be by a special jury.” It will be perceived that the court is only authorized to refer any part of the facts in the case to a master or auditor for his report thereon, but if there are errors of law apparent on the face of the report, the court, on objection being made thereto, can correct the *578same by its judgment before tlie report is allowed and approved by tbe court, as was held in Brinson vs. Wessolowski, 57 Ga. Rep., 142. See Code, §3138. If there are no legal objections apparent on the face of the report of the auditor, or if there are, and the report is allowed and approved by the court without objection, then, after such allowance of the report by the court, it is prvma facie the truth; but either party may except and have the facts decided by a special jury, or by agreement of the parties, by the court, without the intervention of a jury, as was done in this case.

¶192. The coitrt, acting in the capacity of a special jury, by consent of the parties, from the evidence before it, found against the defendant’s exceptions to the auditor’s report, as now complained of, and rendered a decree against the defendant for the sum $30,478.57. The error complained of in the judgment of the court is, that it found from the evidence before it, against the defendant’s exceptions, and rendered the decree that it did. This is a court for the correction of errors, and the party who comes here and complains of error in the judgment of the court below, must affirmatively show the error or errors that were committed by the court on the trial of the cause. Roberts vs. Summers et al., 47 Ga. Rep., 434. A trial before the court by agreement, without the intervention of a jury, does not dispense with the necessity of making such legal points as may be deemed pertinent to the issues involved, and having the decision of the court thereon in the same manner as if the'parties were trying the case before a jury, if they desire to have the judgment of the court reversed here for error. If no legal questions are raised on the trial of the case for the decision of the court, the same will be presumed to have been waived, and the parties will not be allowed to raise them here for the first time for the purpose of assigning error in the judgment of the court below.

¶203. In this case, the record shows that the report of the auditor was allowed and appoved by the court without objection by either party, and was submitted to the court on *579the trial of the cause as containing prima facie the truth. There was no evidence introduced on the trial to controvert the prima facie evidence of the auditor’s report but the evidence of the defendant himself. The court had the right to judge of the character of that evidence, and give to it such weight as, in its judgment, it was entitled to, and no more. The judgment of the court upon the evidence submitted to it at the trial, was not so strongly and decidedly against the weight of the evidence as will authorize this court to set it aside for error, according to its repeated rulings heretofore made. There was no decision of any question of law made by the court during the progress of the trial complained of by the defendant, but it is insisted that this court shall go into the report of the auditor, which had been allowed and approved by the court below without objection from either party, and ransack it for the purpose of discovering errors, both of law and fact, for the purpose of reversing the judgment of the court. This court was not organized for the purpose of performing the functions of an auditor to adjust the accounts of executors and administrators, even if it had the time to do so, but to correct the errors that may be committed on the trial of cases in the superior and city courts, when such errors are plainly and distinctly made to appear. The errors which this court can consider and adjudicate are such as are made affirmatively to appear to have been committed by the court below on the trial of the cause, and not such as may be discovered by ransacking an auditor’s report for errors, when that report has been allowed and approved by the court, and is, therefore, prima facie the truth, and been passed upon by the jury, or by the court acting in the place of a jury, by the consent of the parties. To do so in this case, would be to assume that the auditor’s report had been successfully controverted by the evidence of the defendant himself, when the court, by its judgment, acting in the, capacity of a’ jury, has found otherwise. The judgment of the court below, upon the evidence submitted to it, not being so contrary to that evidence as to make it ille*580gal, should be affirmed, inasmuch as the auditor’s report, in the opinion of the court, had not been successfully controverted by the evidence of the defendant, thereby leaving it to stand as prvma facie the truth.

¶21Let the judgment of the court below be affirmed.

¶22concurring.

¶23The line of statutory enactments seems to indicate clearly that there are two distinct kinds of exceptions to an audit- or’s report. First,-exceptions of law; secondly, exceptions of fact; and these two classes of exceptions are so distinct, and differ so materially, that they are to be tried before different tribunals — the judge to hear and determine matters of law excepted to, and the jury, matters of fact. Code, §§3097, 3138, 3137, 4202, 4203.

¶24In this case there are no separate exceptions of law and fact, but they seem to have been all blended together, making it very difficult to separate the errors of law, if any be charged, from the errors of fact. Section 3138 of the Code, expressly enacts that grounds of objection to rulings of the auditor on the admission and rejection of evidence because illegal, or on any other ground impeaching the propriety .of the report, “ shall be heard and decided by the court,” and that “ the report, when finally accepted, shall be admitted as evidence to the jury,” with instructions appropriate to each case.

¶25It would seem, therefore, that all errors of law against the propriety of the report must be made before the report is accepted, so as to be evidence to the jury, and these legal points must be settled by the court before the result of the auditor’s calculations shall go to the jury. If any of these exceptions, on legal grounds, be sustained by the court, then the system is that the case shall be sent back to the auditor with instructions to hear the case over again and correct Ms report accordingly; and in 47 Ga., 414, the court seems to have adopted this view. There it is ruled that “ an analysis *581of sections 3042, 3082, 3083, 4143 and 4144 of Irwin’s Eevised Code (sections 3097, 3137, 3138, 4202, 4203 of the present Code) shows that when an auditor, or master in chancery, makes a report upon matters of account referred to him, the party against whom the report operates may file two classes of exceptions: first, for alleged errors of law on the part of the referee; secondly, for alleged errors in his report as to the facts found. The first is for the exclusive consideration of the court, under section 3083 (3138.) The facts found by the report are for the consideration of the court in the first instance, after which, if approved by the court, the report becomes prima facie evidence of their truth, subject to be overthrown by testimony before the jury.”

¶26The same case decides that “ it is not necessary, under our practice, that an auditor should append to his report the evidence on which it is based.” In that case no evidence Avas appended, so that the report which is prima facie evidence, is not a report of the facts, but a report on facts; or, in other words, the result or conclusion which the auditor draws from the testimony before him.

¶27Now, in the case at bar, the report was accepted by the court, and the order accepting it was duly passed and appears of record. That judgment, so accepting it, closed all questions of law which had been passed upon by the auditor, and left only issues of fact for the jury on the exceptions filed.

¶28So that, strictly in law, if it be considered best to apply strict rules of law to this case, all exceptions of law to the auditor’s report had been passed upon and overruled by the court, and issues of fact only were left; and before the jury on the issues of fact, the report of the auditor on the facts, the results he reached, became prima facie evidence, and must control, unless overpowered by other evidence introduced on the jury trial. Well, no evidence in this case on the jury trial was introduced, except the defendant’s own testimony. That was very confused and uncertain, to say *582the least, and the jury had full power to believe or not believe it, as they should think right.

¶29It can make no difference in principle that the judge was made the jury by consent. As judge, acting as the court, he ordered the report to be approved and accepted, before he tried the facts as the jury agreed upon by the parties. Then he took the case and tried it, or should have tried it, as a jury. The result is, that I concur in the general view which is presented by the chief' justice, and the conclusion to which he comes, to affirm the judgment on strict legal principles.

¶30Under the application of these principles to the settlement of accounts, the auditor will discharge his appropriate duties and make the calculations, subject to review by the jury, and the legal principles on which he does this duty will be fixed by the court, subject to be reviewed by this court.

¶31But if the legal exceptions, or exceptions of law, can be eliminated from their intermixture with the exceptions of fact, I think, on examining the exceptions thus mixed, these exceptions of law will be found to be but two.

¶32First, ought this administrator to be charged with compound interest, under the facts, where he is so charged ? and, secondly, should he have been charged with the notes turned over to the receiver in 1869 ?

¶33In respect to the first point, on examination of all the facts — those reported by the auditor as sworn to by witnesses before him, as well as that sworn to before the judge acting as a jury — I think that he should be so charged. The estate was certainly mismanaged. One plantation was left to take charge of itself and the executor took no interest in it at all. tie could not tell from whom he collected Confederate money, or from whom he got the bonds in which he invested that money. But the regular rule is to charge simple interest for seven years, and then compound, and that is all that was done in this case. As to the statute compounding intex-est being suspended during the wax*, it will *583be seen that this was done only during tbe existence of the stay law, and that act was declared unconstitutional, and therefore never did exist. See acts of 1862, p. 30; 37 Ga., 124.

¶34In respect to the second point, I think that the presumption is, that these notes could not be collected after the receiver took them. This executor received them perfectly good and solvent, he held them ten years, he made no effort to collect them, and turned them over to the receiver by order of court but a few months before the bar of the limitation act of 1869. It was for him to show that they continued good and solvent till 1869, when he turned them over. This he did not do. Besides, it appears that the most important and largest of them were not good in 1869. Colbert was worth thirty to forty thousand dollars, much of it in Georgia, when the executor got his mote, and up to and during the war; and the witness swears that he thinks he had eight or ten thousand dollars of property im, Alabama left after the war. He was very rich in Georgia for years when the executor held the note. One witness thinks — only thinks — him worth eight to ten thousand after the war m Alabama, beyond the jurisdiction of the court, and even that evidence does not show what time after the war the witness thought him worth this sum in Alabama.

¶35Besides, he owed the estate gold debts to a large amount, and paid them to himself in Confederate money when it was very much depreciated, in 1863 or 1864, which was allowed as legal; and if we depart from strict law and look to broad justice, examining his whole case ourselves, as auditors and jury de nemo, I am of the opinion, from the closest scrutiny I have been enabled to give the case as disclosed by the entire record, (and I have examined the whole record with care,) that the errors .which have been committed by the auditor and court below, if, indeed, any have been committed, in the executor’s behalf and to his advantage, are fully as great as any committed against him, if such have been committed; and that the law has not only been *584administered in respect to adherence to strict principle in a re-examination by the court, as a jury, of the auditor’s report, but that justice in a broader sense has been administered. I therefore concur in the judgment which affirms the judgment of the superior court.