Thomas v. Fred W. Amend Company

1. The court did not err in denying the motion to recommit the report of the auditor. For any reason assigned.

(a) The record discloses that as a matter of fact the auditor took oath before a notary public at the time of his appointment, and before hearing the case, and any irregularity in reference to the oath was corrected when the judge of the superior court ordered that a copy of the oath which the auditor swore he had taken be established in lieu of the original.

(b) The second ground alleges that one of the attorneys representing the opposite parties informed the movant "within the last thirty days," that a coparty defendant of movant was dead; but it is not shown that the alleged death occurred during the period the auditor had the case under consideration and before he made his report, nor is any reason given why the death of the coparty, if true, would change the report of the auditor, nor was any proof offered or admission made that as a matter of fact the party was dead. This ground is without merit.

(c) If it were to be assumed that it does not appear that the auditor completed his report, as complained of in the third ground of the motion to recommit, in that he did not find that a named person acted as "attorney" or "agent" for the plaintiff, this does not show that the defendants were injured thereby, or that such failure would require a different report by the auditor.

(d) Nor is there any merit in the fourth ground of the motion to recommit, which alleges that the auditor failed to find whether or not the attorneys for plaintiffs were negligent in keeping up with the attachment case. The petition alleged that the attorneys had been diligent; and the finding of the auditor that the material allegations of the petition had been substantially proved was necessarily a finding that the attorneys had not been negligent.

2. "When the issues of both law and fact in an equity cause are referred to an auditor," he "takes the place of the jury and the judge, and is pro hac vice the chancellor. To his report exceptions can be filed, to be separately classified as exceptions of law and exceptions of fact." Code, § 10-301; Wiley v. Sparta, 154 Ga. 1, 23 (114 S.E. 45, 25 A.L.R. 1342); Lefkoff v. Sicro, 193 Ga. 292 (18 S.E.2d 464). "In an equity case, if the judge refuses to approve an exception to a finding of fact by the auditor, his ruling will not be disturbed unless there be no evidence to support the finding." Fitzpatrick v. Massee-Felton Lumber Co., 188 Ga. 80 (3 S.E.2d 91); Regal Textile Co. v. Feil, 189 Ga. 581 (4) (6 S.E.2d 908).

(a) Defendants excepted to paragraph 46 of the findings of fact of the auditor: "The evidence submitted on the hearing before the auditor is substantially the same as the evidence submitted to the court at the time the interlocutory injunction was granted (which judgment was affirmed by the Supreme Court. 184 Ga. 432 [191 S.E. 696], and is substantially the same as the evidence submitted to the court at the time the general demurrer of the defendants was overruled (which judgment was affirmed by the Supreme Court, 189 Ga. 654 [7 S.E.2d 258])." After assigning error on the grounds that the above finding was (1) contrary to the evidence and without evidence to support it, and (2) decidedly and strongly against the weight of the evidence, several excerpts from the evidence were set forth, which the exceptor alleged showed ample evidence before the auditor which demanded a finding of fact that the attorneys for defendant in the attachment case "knew or should, in law and equity, have known all about the status of such case."

(b) Applying the ruling announced above, when the judge disapproved the exception of fact which ruling was supported by evidence the finding of the auditor in the equitable case became conclusive, and the judge's ruling in disallowing the exception will not be disturbed.

3. The first finding of law by the auditor: "The prior judgments of the court granting the interlocutory injunction, overruling the general demurrers interposed by the defendants, and denying the defendants' motion to vacate the temporary injunction, each of which judgments were affirmed by the Supreme Court, have become the law of the case," is not erroneous on the grounds; (1) it is an incorrect statement of the "law of the case," because the two decisions referred to simply hold that as against a general demurrer the petition stated a cause of action in equity, and under the evidence introduced at the interlocutory hearing the grant of the temporary restraining order was not error; (2) it is not based on any facts found by the auditor; (3) it is a misconstruction and an "erroneous conclusion that there could be no final trial on the evidence."

4. The second finding of law: "The auditor having found, as a matter of fact, that the evidence submitted at the times said judgments were rendered, on which said judgments are based, is substantially the same as the evidence introduced on the hearing before the auditor, it follows that plaintiffs are entitled to the relief prayed for," is not erroneous on the grounds that (1) such finding is an incorrect conclusion of the law applicable to the case; (2) is contrary to law; (3) is contrary to equity; (4) and that as no facts were found as to defendants in the attachment suit being guilty of negligence or clear of fault or negligence, this finding of law is not based on any pertinent or material finding of fact, and should be reversed.

5. The third finding of law: "A decree should be entered setting aside and cancelling" the default judgments and verdict in the attachment case, is not erroneous on the ground that the finding is incorrect and contrary to law and equity, and is not applicable to the case, because the auditor found no facts upon which to base such finding of law.

6. The fourth finding of law: "Upon the verdict and several judgments being set aside, there will be no necessity for further injunctive relief," is not erroneous on the ground that the verdict and several judgments should not be set aside, and for same to so be would be contrary to law, and same is not based on any fact found by the auditor, and is not applicable to the auditor's finding of fact, for the reason that the auditor did not find any material fact as to the merits of the case, involving whether or not the plaintiffs or their attorneys were negligent or at fault in the premises of the attachment case.

7. On the essential issue as to whether the attorneys for the defendant in attachment were misled as a result of a mistake of the clerk in failing properly to number and docket the attachment case: The auditor to whom the case was referred made findings that "the clerk of the superior court did not docket said attachment proceeding as a new case, nor did he enter the same on the docket where other suits were filed. . . The clerk . . did not give to said attachment proceeding a number such as would have been given to a suit filed to the July term. . . The attorney actively representing the defendant in attachment went to the office of the clerk. . . and searched the suit index for the attachment proceeding, and the only case. . . on the index at that time was the common-law action. . . Counsel for the plaintiff in attachment did not . . call to the court's attention the fact the attachment proceeding had been docketed by the clerk with the common-law action." There was evidence to support the above findings, and the court did not err in approving the auditor's report, which found generally in favor of the plaintiffs in the equity case; and in entering a decree in favor of the plaintiff.

Judgment affirmed. All the Justicesconcur.

No. 14554. JUNE 12, 1943. REHEARING DENIED JULY 9, 1943. Fred W. Amend Company and Hartford Accident Indemnity Company filed a suit in equity against Willie Dollar, his attorney William A. Thomas, the clerk of the superior court, and the sheriff of Fulton County, seeking to enjoin the enforcement of an execution and to set aside judgments obtained in attachment, upon the ground that by reason of mistake of the clerk of the superior court in failing properly to number and docket the attachment case the attorneys for the defendant in attachment were misled into believing that no declaration in attachment had been filed, with the result that they did not file an answer, when as a matter of fact the defendant therein had a good and meritorious defense. A full statement of the pleadings is set forth in Dollar v. Fred W. Amend Co., 184 Ga. 432, where it was held, first, that the allegations of the petition were sufficient to state a cause of action for injunction; and second, that the order granting the injunction was supported by the evidence. It was said in the opinion, that, "regardless of any alleged improper conduct by the attorney for the plaintiff in attachment, the error as made in the clerk's office amounted to an accident or mistake relievable in equity so far as the defendant in attachment is concerned, provided its failure to answer the declaration was attributable thereto, without fault or negligence on its part. . . ``Equity has jurisdiction over matters of mistake, and we think the detail of facts in the bill made out a case for equitable interposition until the hearing could be had on the evidence in the case. . .' It is not essential that these complainants should be clear of all vestige of fault or negligence on their part. ``The negligence of the complaining party, preventing relief in equity, is that want of reasonable prudence the absence of which would be a violation of legal duty. Relief may be granted even in cases of negligence by the complainant, if it appears that the other party has not been prejudiced thereby.' Code, § 37-212. . . There was evidence to support the allegations as to the manner in which the attachment case was numbered and docketed, and to show that the attorneys for the defendant in attachment were misled thereby to the extent of failing to file any answer to the declaration."

While the above case was pending in the Supreme Court, a case involving the grant of an extraordinary motion for new trial was pending in the Court of Appeals. On certiorari the judgment granting a new trial was reversed, because no brief of evidence was attached. Dollar v. Fred W. Amend Co., 186 Ga. 717 (198 S.E. 753). The case again appeared in the Supreme Court. Dollar v. Fred W. Amend Co., 189 Ga. 654 (supra). It was held, (1) that the trial court did not err in overruling general demurrers interposed by Dollar et al. to the equitable petition in which Fred W. Amend Company et al. were plaintiffs; and (2) that the trial court did not err in overruling a motion of defendants to vacate the temporary injunction.

Thereafter the case was referred to an auditor to hear and determine all questions of law and fact, except as to any liability on the part of the clerk. The auditor, after hearing testimony, found in favor of the plaintiffs, and filed his report with findings of law and fact. Thomas, one of the defendants in the equitable suit, acting on behalf of himself and his client Dollar, filed a motion to recommit the report of the auditor, on the grounds: (1) It does not appear of record that the auditor took the legal oath. (2) Within the last thirty days one of the attorneys representing Fred W. Amend Company stated to defendant Thomas that defendant Willie Dollar had departed this life; that Thomas does not know whether the report is true, but if the statement is correct, and if the death occurred during the period the auditor had the case and before his decision, the entire matter should be recommitted to an auditor for decision, and a mistrial granted. (3) From the findings of fact in the report, and particularly findings numbered 15 and 24, it does not appear that the auditor completed his report, in that he did not find that Baird acted as "attorney" or "agent" of the plaintiff, Fred W. Amend Co., and as agent or attorney for the law firm who were attorneys of record for the Amend Co. (4) The report and findings of fact and law of the auditor are incomplete, in that the auditor failed to find that the attorneys in the attachment case were or were not negligent in their actings and doings in keeping up with the case; and for this reason the matter should be recommitted to the auditor for reconsideration. In connection with the motion to recommit, the auditor filed in the superior court a petition showing that he took oath before a notary public at the time of his appointment and before hearing the case; that he believed the original oath was filed with the papers in the case, but was informed that it had been lost or destroyed. A copy of the original oath was attached as an exhibit. The judge ordered that the copy of the oath sworn to have been taken by the auditor be established and allowed filed in lieu of the original, nunc pro tunc, as of the date of his appointment as auditor. The court then overruled the motion to recommit, to which ruling the defendants excepted pendente lite, and assigned error thereon.

The defendants filed one exception of fact and four exceptions of law. The exception of fact was disallowed, and the exceptions of law were overruled, after which a decree was entered which stated, in part: "Since the court is of the opinion that the auditor's report makes correct findings of fact and correct findings of law in said case, the court hereby expressly approves the auditor's report in entirety, and in accordance therewith enters the following final decree in said case. . . [Then follows a list of the verdict, judgments, and fi. fa., that were set aside and canceled.] It is further ordered and decreed that the action now pending in this court, entitled Willie Dollar v. Fred W. Amend Company, and docketed as No. 112, 188 Fulton superior court, be restored to its status as a cause pending in this court, and subject to stipulation on the trial calendar for trial on its merits by either plaintiff or defendant, as provided by the rules of this court." It was further decreed that all costs in this case (except the auditor's fee, which was made the subject of another judgment) be taxed against Willie Dollar, and William A. Thomas.

Thomas filed a bill of exceptions in which error was assigned on the rulings disallowing the exception of fact and overruling the exception of law, on the grounds that the ruling was: "(a) contrary to the evidence in the record before the auditor, and without evidence to support it, and (b) decidedly and strongly against the weight of the evidence, and (c) the evidence demanded a finding of negligence on the part of defendant in attachment and its attorney, in law and equity, justice and good conscience, and (d) the evidence of record plainly showed, as a matter of law and equity, that counsel for plaintiffs in this equity case had been guilty of thricefold negligence in their alleged attempt to keep up with the attachment case prior to the judgment of September 30th, 1936, now sought to be set aside." Error was also assigned on the ground that the final decree was contrary to law and equity and prejudicial and hurtful to defendants, because: "(a) same was contrary to the evidence before the auditor, and without evidence to support it. and (b) same was decidedly and strongly against the weight of the evidence, and (c) because the evidence demanded a finding of negligence on the part of defendant in attachment and its attorney, in law and equity, justice, and good conscience."