O.C.G.A. § 9-7-14 (2019)

Annotations

JUDICIAL DECISIONS Editor’s notes. - This section was completely revised by Ga. L. 1964, p. 697, § 1. The revisions made pertained chiefly to the details required to be set forth in exceptions to auditor’s reports. Prior law required that portions of the record and auditor’s reports be set forth in detail. Notes to cases decided prior to 1964 have been retained where language does not appear contradictory to that of the present section. To the extent that a case requires detailed exceptions, it is no longer good law. Purpose of section. - Complicated character of cases referred to auditors and lengthy records are reasons for rules of this section. Merchants Nat’l Bank v. Armstrong, 107 Ga. 479, 33 S.E. 473, 1899 Ga. LEXIS 98 (1899); Hudson v. Hudson, 119 Ga. 637, 46 S.E. 874, 1904 Ga. LEXIS 317 (1904); McDuffie v. Merchants’ & Citizens’ Bank, 177 Ga. 695, 170 S.E. 805, 1933 Ga. LEXIS 393 (1933) (see O.C.G.A. § 9-7-14).

This section is mandatory, and makes no exception in favor of a person who is prevented by providential cause from filing the person’s exceptions within the time prescribed. Littleton & Lamar v. Patton & Co., 112 Ga. 438, 37 S.E. 755, 1900 Ga. LEXIS 188 (1900) (see O.C.G.A. § 9-7-14). Exceptions permitted to auditor’s report. - When the issues of both law and fact in an equity cause are referred to an auditor, the auditor takes the place of the jury and the judge, and is pro hac vice the chancellor. To the auditor’s report exceptions can be filed, to be separately classified as exceptions of law and exceptions of fact. Lefkoff v. Sicro, 193 Ga. 292, 18 S.E.2d 464, 1942 Ga. LEXIS 371 (1942); Thomas v. Fred W. Amend Co., 196 Ga. 455, 26 S.E.2d 415, 1943 Ga. LEXIS 329 (1943). Exceptions only proper way to assign error to auditor’s report. - It is not permissible in a bill of exceptions (now

notice of appeal) to assign error on the findings made by an auditor; the way to reach error therein is to file exceptions thereto in the trial court, and, if they be not approved by the judge, to assign error on the judge’s ruling. Sengstacke v. American Missionary Ass’n, 196 Ga. 539, 26 S.E.2d 891, 1943 Ga. LEXIS 376 (1943). Exceptions to auditor’s report may complain only of errors made by auditor (not trial court) and the record before the auditor must show the matter to which exception is taken. Simonton Constr. Co. v. Pope, 95 Ga. App. 211, 97 S.E.2d 590, 1957 Ga. App. LEXIS 756, 1957 Ga. App. LEXIS 964 (1957), rev’d, 213 Ga. 360, 99 S.E.2d 216, 1957 Ga. LEXIS 383 (1957), overruled, GeorgiaCarolina Brick & Tile Co. v. Brown, 153 Ga. App. 747, 266 S.E.2d 531, 1980 Ga. App. LEXIS 1965 (1980). Auditor’s failure to file brief of evidence not grounds for exception. - 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, but it is not ground for exception to the report under this section. Smith v. Moore, 93 Ga. App. 797, 92 S.E.2d 822, 1956 Ga. App. LEXIS 866 (1956) (see O.C.G.A. § 9-7-14). Failure to file exceptions within statutory time period of Ga. L. 1964, p. 697, § 1 (see O.C.G.A. § 9-7-14) cannot be cured by later amendments made after the expiration of the time period. Application of Ga. L. 1972, p. 689, § 6 (see O.C.G.A. § 9-11-15) under these circumstances would frustrate the purpose of the time limitation period and allow a party to do indirectly what cannot be done directly. Wise, Simpson, Aiken & Assoc. v. Rosser White Hobbs Davidson McClellan Kelly, Inc., 146 Ga. App. 789, 247 S.E.2d 479, 1978 Ga. App. LEXIS 2533 (1978). Amendment may set up exception, after 20 days, if good reason therefor appears. Robert R. Sizer & Co. v. G. T. Melton & Sons, 129 Ga. 143, 58 S.E. 1055, 1907 Ga. LEXIS 323 (1907); Faucett v. Rogers, 152 Ga. 168, 108 S.E. 798, 1921 Ga. LEXIS 32 (1921).

If exceptions can be amended at all after 20 days, this cannot be done unless good cause is shown why they were not filed within the time provided by law. Moon v. Moon, 105 Ga. App. 597, 125 S.E.2d 560, 1962 Ga. App. LEXIS 988 (1962). Motion to recommit report of auditor is in its essence an exception to the auditor’s report which under this section must be made within 20 days after such report is filed and notice thereof given. Collins v. Lyon, Lyon & Co., 222 Ga. 6, 148 S.E.2d 428, 1966 Ga. LEXIS 380 (1966) (see O.C.G.A. § 9-7-14). Motion to recommit auditor’s report must be made within 20 days after such report is filed and notice thereof given, but the trial judge is authorized to extend the 20-day period for filing exceptions to an auditor’s report when an application therefor is made to the judge prior to the expiration of 20 days after such report is filed and notice thereof given. Collins v. Lyon, Lyon & Co., 222 Ga. 6, 148 S.E.2d 428, 1966 Ga. LEXIS 380 (1966). Motion to recommit made after 20 days too late unless extension previously granted. - Where no application for any extension of time for filing exceptions is made and the motion to recommit the auditor’s report is not made until 22 days after such report was filed and notice thereof given, then the motion to recommit is made too late to be considered. Collins v. Lyon, Lyon & Co., 222 Ga. 6, 148 S.E.2d 428, 1966 Ga. LEXIS 380 (1966). Exceptions under this section should contain all facts and rulings necessary to show harmful error. They should not be so incomplete as to force the court to search through the record to find error. Mason v. Commissioners of Rds. & Revenues, 104 Ga. 35, 30 S.E. 513, 1898 Ga. LEXIS 278 (1898); Hudson v. Hudson, 119 Ga. 637, 46 S.E. 874, 1904 Ga. LEXIS 317 (1904); Baxter & Co. v. Camp, 126 Ga. 354, 55 S.E. 1036 (1906); Ward v. Florence, 44 Ga. App. 767, 162 S.E. 872, 1932 Ga. App. LEXIS 490 (1932); Mobley v. Morris, 45 Ga. App. 201, 164 S.E. 167, 1932 Ga. App. LEXIS 227 (1932); McDuffie v. Merchants’ & Citizens’ Bank, 177 Ga. 695, 170 S.E. 805, 1933 Ga.

LEXIS 393 (1933) (decided under Code 1933, § 10-301, prior to revision by Ga. L. 1964, p. 697, § 1). Exceptions to report not stricken where alleged errors clearly delineated. - Exceptions to an auditor’s report should not be stricken on demurrer (now motion to dismiss) when they point out the alleged errors in such manner that the nature of the same can be clearly and readily understood when considered in connection with the findings of the auditor to which such exceptions refer; but it is not erroneous to strike exceptions not meeting the requirement just indicated. Ward v. Florence, 44 Ga. App. 767, 162 S.E. 872, 1932 Ga. App. LEXIS 490 (1932); Mobley v. Morris, 45 Ga. App. 201, 164 S.E. 167, 1932 Ga. App. LEXIS 227 (1932) (decided under Code 1933, § 10-301, prior to revision by Ga. L. 1964, p. 697, § 1). General exceptions fail to clearly specify error. - Exceptions to findings of law by an auditor that the findings are “contrary to law, contrary to equity, and contrary to law and equity,” fail to clearly and distinctly specify the errors com-

plained of. Woodward v. Williams Bros. Lumber Co., 176 Ga. 107, 167 S.E. 169, 1932 Ga. LEXIS 398 (1932) (decided under Code 1933, § 10-301, prior to revision by Ga. L. 1964, p. 697, § 1). Exception improperly classified. - Where an exception is improperly classified as an exception of fact, a motion to dismiss or strike the exception will be sustained, where no amendment is offered. Tippin v. Perry, 122 Ga. 120, 50 S.E. 35, 1905 Ga. LEXIS 123 (1905); Moss v. Chappell, 126 Ga. 196, 54 S.E. 968, 1906 Ga. LEXIS 361 (1906). Burden on one excepting to show error. - An auditor’s report being prima facie correct, and the burden being on one excepting to show error, it is incumbent upon the auditor to set forth or attach the evidence necessary to pass upon any exception of law or fact that requires a consideration of evidence, or at least to point out the location of such evidence in the auditor’s report. Brown v. Parks, 190 Ga. 540, 9 S.E.2d 897, 1940 Ga. LEXIS 517 (1940).

RESEARCH REFERENCES Am. Jur. 2d. 27A Am. Jur. 2d, Equity, §§ 224 et seq., 227. 66 Am. Jur. 2d, Records and Recording Laws, § 67.

C.J.S. 76 C.J.S., Records, §§ 4, 8.