O.C.G.A. § 9-7-13 (2019)

Annotations

JUDICIAL DECISIONS This section provides that judge may recommit for reasons mentioned, or other proper cause, and this may be done for a hearing de novo. Selman v. Faver, 210 Ga. 616, 81 S.E.2d 834, 1954 Ga. LEXIS 382 (1954) (see O.C.G.A. § 9-7-13). Trial judge may recommit insufficient report for further proceedings. Sattes-Weimer Lumber Co. v. Bowen, 146 Ga. 156, 90 S.E. 861, 1916 Ga. LEXIS 637 (1916). Pending determination of exceptions to auditor’s report, court may recommit for clarification and to supply omissions. McKenzie v. Perdue, 67 Ga. App. 202, 19 S.E.2d 765, 1942 Ga. App. LEXIS 353, rev’d, 194 Ga. 356, 21 S.E.2d 705, 1942 Ga. LEXIS 587 (1942). Recommitment lies in the discretion of the judge. Trentham v. Bluthenthal & Bickart, 118 Ga. 530, 45 S.E. 421, 1903 Ga. LEXIS 606 (1903). O.C.G.A. § 9-7-13 makes it discretion-

ary with the judge whether to recommit and, if so, to what extent. Carmichael v. Carmichael, 248 Ga. 216, 282 S.E.2d 71, 1981 Ga. LEXIS 937 (1981). The question of recommitting an auditor’s report for corrective action is a matter of discretion for the judge. The judge may do so on the judge’s own motion in appropriate situations, or the judge may recommit on the motion of either party, or the parties may - by their action or inactions - waive the remedy of recommittal. Carmichael v. Carmichael, 248 Ga. 216, 282 S.E.2d 71, 1981 Ga. LEXIS 937 (1981). Recommitment not always necessary. - Under this section, the court is not required to recommit for errors of law or errors of calculation, or unauthorized findings of fact, for errors in those respects may be pointed out in exceptions to the findings and a judgment of the court thereon invoked. Pearce v. Smith, 160 Ga. 337, 127 S.E. 764, 1925 Ga. LEXIS 151

(1925); Henderson v. Lott, 170 Ga. 261, 152 S.E. 98, 1930 Ga. LEXIS 434 (1930); Musselwhite v. Ricks, 55 Ga. App. 58, 189 S.E. 597, 1936 Ga. App. LEXIS 427 (1936) (see O.C.G.A. § 9-7-13). Effect of recommitment. - When the court recommits pursuant to this section, it is neither an approval nor disapproval of the exceptions. Sanford v. Tanner, 114 Ga. 1005, 41 S.E. 668, 1902 Ga. LEXIS 860 (1902) (see O.C.G.A. § 9-7-13). Grounds for recommitment distinguishable from grounds for exception. - Where the ground upon which the motion is predicated is failure to separately state the ruling, or classify and state findings, or for lack of fullness in report, this section prevails, and the remedy is not by exceptions. Weldon v. Hudson, 120 Ga. 699, 48 S.E. 130, 1904 Ga. LEXIS 679 (1904); Jones v. Nolan, 120 Ga. 588, 48 S.E. 166, 1904 Ga. LEXIS 647 (1904); Collinsville Granite Co. v. Phillips, 123 Ga. 830, 51 S.E. 666, 1905 Ga. LEXIS 608 (1905); Fricker v. Americus Mfg. & Imp. Co., 124 Ga. 165, 52 S.E. 65, 1905 Ga. LEXIS 683 (1905); McCord v. City of Jackson, 135 Ga. 176, 69 S.E. 23, 1910 Ga. LEXIS 468 (1910); Smith v. Smith, 135 Ga. 582, 69 S.E. 1110, 1911 Ga. LEXIS 6 (1911); Southern Pine Co. v. Dickey, 136 Ga. 662, 71 S.E. 1110, 1911 Ga. LEXIS 170 (1911); Smith v. Wilkinson, 143 Ga. 741, 85 S.E. 875, 1915 Ga. LEXIS 603 (1915) (see O.C.G.A. § 9-7-13). If an auditor’s report fails to find all the facts, or to cover all the issues, advantage should be taken by motion to recommit, rather than by an exception which if sustained would leave the matter where it began. Benton v. Roberts, 53 Ga. App. 121, 185 S.E. 292, 1936 Ga. App. LEXIS 22 (1936). Exceptions should go to what the auditor reported, not to what the auditor did not report; if the auditor’s report was not full enough, the defendants should have prayed the court for an order recommitting the report, so that the alleged omissions could have been supplied in the regular and legal manner. Bussell v. Glenn, 197 Ga. 816, 30 S.E.2d 617, 1944 Ga. LEXIS 334 (1944). Recommitment was proper where report failed to set out separate items

which went to make up the gross sums found against the respective defendants. Greer v. Andrews, 133 Ga. 193, 65 S.E. 416, 1909 Ga. LEXIS 189 (1909). Failure to file brief of evidence grounds for recommitment. - Where it appears that the auditor filed no brief of the evidence with the auditor’s report, the auditor’s failure to file such report would be ground for a motion to recommit the report to the auditor to remedy this defect. Smith v. Moore, 93 Ga. App. 797, 92 S.E.2d 822, 1956 Ga. App. LEXIS 866 (1956). Failure to determine solvency also grounds for recommitment. - When the auditor failed to find or decide whether or not the parties were solvent or insolvent, this was a failure to report with sufficient fullness on one of the issues and the court could, in its discretion, on its own motion, recommit the matter. Benton v. Roberts, 53 Ga. App. 121, 185 S.E. 292, 1936 Ga. App. LEXIS 22 (1936). Where the auditor reported that there was not sufficient evidence to determine the issue of insolvency, this was not a definite finding of material fact, but it was rather a failure to report a finding on the issue; the judge, in the absence of exceptions, could recommit this report for a definite and certain decision by the auditor on the issue of insolvency. Benton v. Roberts, 53 Ga. App. 121, 185 S.E. 292, 1936 Ga. App. LEXIS 22 (1936). Auditor’s failure to take oath may prompt motion to recommit. - The failure to take and file the oath prescribed by former Code 1933, § 10-104 (see O.C.G.A. § 9-7-5), in the case of auditors appointed by the court, was such an irregularity as can be waived by the parties and in any event should be taken advantage of by a motion to recommit the report to the auditor, which must be filed within 20 days after the filing of the report and notice thereof. Bickerstaff v. Turner, 188 Ga. 37, 2 S.E.2d 643, 1939 Ga. LEXIS 790 (1939). Recommittal proper for ruling on res judicata. - If defendants desired and were entitled to a specific ruling on a plea of res judicata, their remedy was to ask that the case be recommitted. Bussell

v. Glenn, 197 Ga. 816, 30 S.E.2d 617, 1944 Ga. LEXIS 334 (1944). Recommittal to auditor proper where judgment as to exceptions reversed on appeal. - When the judgment of the superior court, overruling the exceptions to the auditor’s findings of fact and of law, was reversed by the Supreme Court without directions, the effect was to vacate the erroneous judgment of the trial court and to grant a hearing de novo before the auditor upon the issues of fact involved and on all questions of law not settled by the decision of the Supreme Court; and the trial court did not err in denying the motions of the plaintiffs in error for final judgments, and in recommitting the cases to the auditor for a new hearing and trial de novo, as per said order. Selman v. Faver, 210 Ga. 616, 81 S.E.2d 834, 1954 Ga. LEXIS 382 (1954). Where petition expressly prayed for removal of executrix and auditor made no finding, there was an “omission” and the judge had power on the judge’s own motion to refer the case back to the auditor for a specific finding. McKenzie v. Perdue, 67 Ga. App. 202, 19 S.E.2d 765, 1942 Ga. App. LEXIS 353, rev’d, 194 Ga. 356, 21 S.E.2d 705, 1942 Ga. LEXIS 587 (1942). Motion for recommittal must specify errors with particularity. - A motion for recommittal must specify with particularity wherein the report of the auditor may be indefinite, confusing, or contradictory. Haygood v. Smith, 80 Ga. App. 461, 56 S.E.2d 310, 1949 Ga. App. LEXIS 862 (1949). Time of filing motion and notice. - The motion to recommit an auditor’s report must be filed within 20 days after the

report is filed, and written notice thereof given by the auditor to the parties. Littleton & Lamar v. Patton & Co., 112 Ga. 438, 37 S.E. 755, 1900 Ga. LEXIS 188 (1900); Smith v. Smith, 135 Ga. 582, 69 S.E. 1110, 1911 Ga. LEXIS 6 (1911). Motion for recommittal combined with exceptions. - Under the circumstances, the fact that the defendants combined their motion for recommittal with their exceptions of law and fact to the auditor’s report, while not good practice in pleading, was not ground for dismissal of the entire pleading. Haygood v. Smith, 80 Ga. App. 461, 56 S.E.2d 310, 1949 Ga. App. LEXIS 862 (1949). Not error to deny motion to set aside judgment once court approves report. - Where the auditor filed a report with the court, and one party subsequently filed a motion to recommit, but the judge entered an order approving the report, the judge did not err in denying a motion to set aside the judgment because the motion to recommit was still pending. Oliver v. Union Inv. Co., 177 Ga. 571, 170 S.E. 674, 1933 Ga. LEXIS 359 (1933). Presenting auditor’s report to the jury. - Trial court did not err in refusing to present the noncompliant auditor’s report to the jury because the report, which erroneously commingled the factual findings and legal conclusions, would impose a disadvantage and prejudice a camp in the camp’s efforts to obtain a fair resolution of the camp’s exceptions before a jury, and the parties stipulated to a procedure in which the case would be decided without recommitting the auditor’s report for correction. Camp Cherokee, Inc. v. Marina Lane, LLC, 316 Ga. App. 366, 729 S.E.2d 510, 2012 Ga. App. LEXIS 563 (2012).

RESEARCH REFERENCES Am. Jur. 2d. 27A Am. Jur. 2d, Equity, § 207 et seq.