Douherty v. Jones , 37 Ga. 348 ( 1867 )

Harris, J.

Barnard Hill, Esq., one of the attorneys at law of the administrator of the estate of Daniel McDougald, deceased, with other creditors of the estate, all of whose claims accrued since the death of intestate, by petition to the Superior Court presented their demands, and prayed 'that the Court would order them to be paid out of the funds in the hands of the receiver, who had collected in the assets of McDougald, which, by a deed made by him, had long previously to this application been assigned for the benefit of his then existing creditors.

The plaintiffs in error in behalf of themselves and other creditors named in the deed of assignment, alleging the insufficiency of the funds in the hands of the receiver to pay their claims, resisted this application, as also that for the appointment by the Court of an auditor to whom the petition should be referred, with directions to report thereon. Against their objections to the appointment of an auditor, and without their assent to the person named, the Judge appointed an auditor, and to him referred the claims of the creditors under the deed of assignment, as also of the creditors petitioning as stated.

1. During the present term of this Court the case of Wm. T. Vanduzer, administrator of Ira Christian, vs. Robert McMillan, from Elbert county, involving the identical question again presented, was fully considered and determined. I mean the question of the authority of the Court to appoint, of his own discretion and of his own will, an auditor. In that case this Court held that whilst the Judge of the Superior Court, either in term or vacation, upon the application of either of the parties litigant, might appoint an auditor, still the assent of the reference of the matters in controversy to an auditor, as also to the person appointed, was necessary, that such auditor so appointed might proceed upon reasonable notice to the parties of the time and place, when and where he would sit, to hear the evidence of the parties, investigate their accounts, and report the result of his scrutiny to the Court.

The decision in the case inferred to must control our judgment here. We therefore rule that the Judge below erred in appointing, as he did, an auditor against the objections of the plaintiffs in error, and without their consent to the person so appointed.

2. By section 4143, Irwin’s Code, the Judge of the Superior Court, (who by our peculiar system is both a common-law Judge and a Chancellor,) may appoint a master in chancery for his circuit. This should be by an order of Court, entered on its minutes, and the master so appointed should be sworn to discharge with fidelity the duties of his office; and if monies should be placed in his hands until the final decree of the Court, bond and security may be required of such officer. In thus indicating what should be done in the appointment of this officer, we would not be understood as deciding that our Code has thus prescribed ; we simply point out the course of procedui’e which obtains elsewhere, and especially of the Courts from which we have derived our chancery practice.

To a master in chancery, appointed under this section, the Court may refer without the consent of parties such matters of account as are complicated in their nature, as also questions arising from the matters of fact investigated. Before this officer of the Circuit parties and witnesses may be called, on reasonable notice to them, to attend him at the place of holding our Superior Court in the county in which the litigation is pending, and then and there may contest each others claims. When an investigation shall have been made, the master in chancery should make a report in writing upon the matters submitted or involved, and it should be by him filed in the office of the clerk of the Superior Court a sufficient length of time, to be judged of by the Court, before the next ensuing term of Court, so as to enable either of the parties to make their exceptions in writing specifically to any part of such report, that they may be finally disposed of during the term next succeeding the filing of the master’s report. We do not design to impose the views expressed as formulas to be rigidly observed in the Superior Courts, and by those acting in subordination to them, but simply as general rules which should be conformed to, unless it should be made to appear that injustice or great inconvenience would result from such conformity.

3. The bill of exceptions presents as another ground of error, the refusal of the Court below to dismiss the receiver appointed under the assignment of McDougald, upon motion. The plaintiffs in error had given no notice whatever to the receiver of such intended motion. We think the Judge did not err in refusing to hear a motion thus made. The receiver should have had reasonable notice in writing of such intended motion, and the grounds upon which his removal is sought specifically set out in such written notice.

The judgment of the Court is reversed on the first ground.