Massachusetts Bonding & Insurance v. Realty Trust Co. , 139 Ga. 180 ( 1912 )

ON MOTION TO REHEAR.

Lumpkin, J.

It is contended that this court misconstrued the order of reference to the auditor. The argument is made that 'the existence of the liens upon the property of the Eealty Trust Company, claimed by various lienors, was an issue in which the bonding company was interested, and therefore fell within the description in the excepting clause of the order of reference of “issues arising directly between the petitioner” (the first-named company) and the bonding company; that, unless some other issue “could be found or made, the order of reference was a nullity, because the excepting clause had cut oí! all the preceding clause had put in.” We had before us two possible constructions of the order, by one of which the presiding judge referred something to the auditor (not merely a possible issue “which could be found or made,” in the language of the motion for a rehearing), and th,e auditor legitimately passed on something; and by the other of which the judge referred something in one sentence and destroyed the reference in the next, and as a result the entire proceeding before the auditor was a mere nullity. We chose the former construction, thinking it proper not to give to an order of a court a conflicting and self-destructive meaning, unless such was clearly its import; especially as the subsequent ruling, in 'refusing to declare the report a nullity, was not consistent with that view on the part of the court.

It is further urged that this court erred in saying in effect that the bonding company had an opportunity to be heard before the auditor, and declined the same. The two cases arising under the bill of exceptions of the Eealty Trust Company and that of the bonding company were argued and decided together in this court. In the former bill of exceptions it was recited that “the case was heard by the auditor as directed in said decretal order, in which hearing the Massachusetts Bonding and Insurance Company declined to participate, because of the pendency of its writ of error undetermined in the Supreme Court.” This was duly certified. We did not understand that the statement that the company “declined to participate” meant that it had no opportunity to do so. Nothing has been brought to our attention indicating any effort or offer by that company to 'appear before the auditor, or any refusal to allow it to do so.

It was urged that it appeared from the recitals in its bill of exceptions that the bonding company’s exceptions to the auditor’s report were stricken on motion of counsel for the lienors, on the ground that the bonding company was not a party at interest to the auditor’s report, and that such motion was sustained by the court. It was argued from this that a practical construction was given to the order of reference; and it was further urged that the parties—especially the Eealty Trust Company—estopped themselves from claiming that the bonding company was a party to the proceeding before the auditor, or that the issue as to the liens could not be referred without affecting that company. Though stated to be subject to the previous motions made by it, the bonding company excepted to the striking of its exceptions to the auditor’s report, and assigned that ruling as error; and this court has sustained the exception, holding the ruling to be error, and has given direction "that these exceptions to the auditor’s report should be allowed to stand of file and be heard. Again, all of the parties except the bonding company agreed that the auditor should be paid for his services a fee larger than that named in the statute;.and the court passed an order allowing such fee, reciting that all the parties at interest had agreed-to such order. The bonding company excepted and assigned error on this order, asserting that it had not agreed thereto; and this court, under such assignment of error, directed a modification of the order. If the bonding company was a party interested in that part of the case, it had a right ■to except to this order, and to «the order striking its exceptions. If it was not, why should it do so? Still further, the final decree adjudicated in favor of the liens claimed by the lienors, but contained a recital somewhat similar to that in the order of reference, and .stated that the case was kept open for such further orders or decrees as might be needful and proper to dispose of the issues between the Eealty Trust Company and the bonding company. The bonding company excepted. If it was in no way affected by the decree, why except to it ? If it was affected by the decree, it must have been because it was a party to the case, and was affected by the auditor’s report, though such report and decree did not adjudicate the issue of the liability of the bonding company to the Eealty Trust Company “arising directly” between those companies.

A motion was made in this court to dismiss the writ of error on the Exceptions of the bonding company, one ground being that there was no final judgment or disposition of the case in the court below as against the plaintiff in error. This motion was resisted, and was overruled by this court. And yet, if the reference, the report, and the decree did not affect the plaintiff in error in any way, it would' seem that it could not except. The fact is that the bonding company was essentially interested in the question of the existence of liens on the property of the Eealty Trust Company that was determined in a case to which the bonding company was a party. Had the auditor refused to permit it to appear and be heard on that question, it would have had cause for complaint; but not because it “declined to participate,” or simply “did not participate,” in the language of the motion for a rehearing.

Of course, it is possible that we may not have placed the proper construction, upon the order of reference. We can not look into the mental intentions of counsel or the court, except as exhibited by what was done. But if the contention set up in the arguments for the bonding company and in the motion for a rehearing were sus-' tamed, the net result of what has been done would apparently be something like this: An equitable petition was filed, making the bonding company a party. That company demurred, and sought to be dismissed from the case. This was denied, and it excepted. While exception to this ruling was pending, parties and the court dismembered the case and destroyed the nexus on which-depended the overruling of the demurrer and the subsequent decision of this court; or else the presiding judge passed an order which purported in one sentence to refer some substantial part of the ease to an auditor, and in the next practically nullified it. And, in spite of former rulings, the bonding company must now be dismissed from the case, or the reference and all that was done under it must be declared to have amounted to nothing. We do not think that a construction should be given, unless necessary, which would result in so elaborate a nullity.

Motion denied.