Holton v. Lankford , 189 Ga. 506 ( 1939 )

The majority opinion rules that the judgment should be reversed, and the case recommitted for a de novo hearing before the examiner. The prevailing opinion makes it sufficiently clear that the practice and procedure concerning the action of the judge in relation to the report of the special examiner under the land-registration act is similar to that where an auditor's report is before him; and what follows is on the presumption that that premise is correct, and for convenience the word "auditor" will be used instead of "special examiner." I do not regard the language in the latter part of section 60-304 of the Code, which is a part of the registration law, as to when a judge is authorized to recommit the report, as any enlargement of his powers from those accorded him in title 10 of the Code (§ 10-305) in relation to auditors. The basis of the decision of the majority is that there had been no finding by the examiner on which to base such a decree. I differ in toto from such an interpretation of this record. There was, I think, the absolute equivalent of a finding to that effect; and this is sufficient. The auditor filed a report of the evidence, which was before the trial court, as well as were his findings thereon. He found in favor of the applicant, whom we refer to as the plaintiff. Exception was filed thereto. The issue thus formed was for decision by the judge, in the absence of a demand for a jury. He found in favor of the finding and against the exception. This court on review held that the evidence as a matter of law demanded registration in favor of applicant's adversary, Mrs. Lankford. When the remittitur was entered, and the case reached the trial judge, what was he to do? He had before him the evidence as reported by the auditor. This court had said that it demanded a certain decree. The judge entered it, and according to the opinion of the majority his judgment for so doing should be reversed. With the evidence before the judge, and the judgment of this court adjudicating that under such evidence only one legal decree could be entered, a decree in accordance therewith was in effect a decision sustaining the exception. The fundamental error, it seems to me, in the majority opinion is the statement that the trial court entered a decree in the absence of a finding. When an auditor finds that black is white, and this court on writ of error adjudges that white is white, my view is that the trial judge, who under the statute, in the absence of a demand for a jury, passes on the exception, is justified in framing a decree based on the proposition that white is white. I think that under such circumstances there has been to all intents and purposes a finding of fact to support the decree to which exception is taken. The effect of the ruling of this court upon the former appearance of this case was to hold that under the evidence, Mrs. Lankford was entitled to have her title registered. The evidence, before the trial court, when the case was again called, was the same. The report of the auditor contained the evidence. It was a part of his report. This court construed the evidence as a whole. It adjudged its effect. It is nothing new to our law that a judge may frame a decree based in part on the undisputed evidence. Law v. Coleman, 173 Ga. 68 (159 S.E. 679). Indeed the land-registration law itself (Code, § 60-222) contains a provision that, "After the record shall have been perfected and settled, the judge of the superior court shall thereupon proceed to decide the cause; and if, upon consideration of suchrecord, the title shall be found in the petitioner, the judge shall enter a decree to that effect, ascertaining all limitations, liens, encumbrances, etc., and declaring the land entitled to registration accordingly as he shall find, and such decree shall be entered upon the minutes of the superior court and become a part of the records thereof. If, upon consideration of the record, he shall find that the petitioner is not entitled to a decree declaring the land entitled to registration, he shall enter judgment and decree accordingly." (The italicized words are the writer's.) The undisputed evidence was a part of the record.

Because our Code, § 37-1201, defines a decree as "the judgment of the judge in equitable proceedings upon the facts ascertained," it does not follow that there can never be a decree unless there is a formal finding of facts. Compare § 37-1101. All of us can recall instances where the court, on the petition and answer, there being no issue of fact involved, can properly enter a decree. In such a case the decree is not based on a finding of fact. The statement that a decree must be based on a finding of fact presupposes an issue of fact.

In the majority opinion it is stated that on the second hearing before the auditor, the evidence may not be the same. The vice of that suggestion is that it presupposes a rereference to the auditor, for reasons beyond those contemplated by our Code. The opinion seems to proceed on the premise that when a jury finds in favor of an exception, the finding is thereby merely wiped out, and hence that there is no finding one way or the other. This may be true in many cases, but it does not apply when the inquiry involves the question of yes or no; and herein, it seems to me, lies the error of my colleagues, to wit, their conclusion that when a jury sustains an exception they do nothing more than to obliterate the finding. This may be true in some cases; but in others, as in this, they do more; they establish that what the auditor reported as a fact was not a fact. If the establishment of such fact be essential to the case of the party asserting it, then by the jury's finding he loses. This follows because he has not carried the burden. The majority cite Schley v. Schofield, 61 Ga. 528. I find support in the following language used therein: "If there were a finding of the facts, as by a verdict, and this finding were in favor of the plaintiff in error, and became fixed upon the record, and if the error was simply in applying the law to the found and fixed facts, then a reversal would leave something for the court below to fall back upon; the verdict or other record finding of the facts, would furnish a basis for entering up a correct judgment, without either direction to that effect from this court, or a new trial." The report of the facts, — the "found and fixed" facts, together with the court's ruling as a matter of law, on the effect of those facts, furnishes a basis for the decree rendered, "without either direction to that effect from this court, or a new trial." I have examined all of the Georgia decisions cited in the majority opinion. None of them, in my judgment, are contrary to the views herein expressed. I have not had an opportunity, however, to consult all of those cited from foreign jurisdictions. I dissent.