O.C.G.A. § 9-7-17 (2019)

Annotations

JUDICIAL DECISIONS Constitutionality. - The provisions in this section are not unconstitutional. Bank of Lumpkin v. Farmers State Bank, 167 Ga. 766, 146 S.E. 754, 1929 Ga. LEXIS 33 (1929) (see O.C.G.A. § 9-7-17). Distinction between trial at law and equity. - In actions at law the right to jury requires that exceptions of fact to an auditor’s report shall be submitted to a jury. There is no such provision as to equity cases. Weed v. Gainesville, Jefferson & S.R.R., 119 Ga. 576, 46 S.E. 885, 1904 Ga. LEXIS 292 (1904). Provision for right to jury trial is clearly mandatory in actions at law. This provision cannot be waived except by express consent of the parties. Green & Sutton v. Valdosta Guano Co., 121 Ga. 131, 48 S.E. 984, 1904 Ga. LEXIS 39 (1904); Guarantee Trust & Banking Co. v. Dickson, 23 Ga. App. 720, 99 S.E. 313, 1919 Ga. App. LEXIS 311 (1919). All exceptions of fact presented to jury in actions at law. - While the judge has the exclusive consideration of exceptions of law to an auditor’s report, in all actions at law, exceptions of fact to the auditor’s report shall be passed upon by the jury. Philips v. L.A. Miller & Sons, 57 Ga. App. 561, 196 S.E. 276, 1938 Ga. App. LEXIS 336 (1938). Referral to jury matter of constitutional right. - All proper exceptions of fact to a report of an auditor in law cases must, as a matter of constitutional right, be referred to a jury. Rabun v. Wynn, 92 Ga. App. 228, 88 S.E.2d 478, 1955 Ga. App. LEXIS 560 (1955). A jury verdict on the exceptions of fact to an auditor’s report is a constitutional prerequisite to a valid judgment, where there is no semblance of a waiver of the jury in this record. Simonton Constr. Co. v. Pope, 213 Ga. 360, 99 S.E.2d 216, 1957 Ga. LEXIS 383 (1957). In law cases, court has no right to strike exceptions of fact and enter judgment without verdict of a jury. Georgia Power Co. v. Parker, 48 Ga. App. 807, 173 S.E. 730, 1934 Ga. App. LEXIS 206 (1934); Philips v. L.A. Miller & Sons,

57 Ga. App. 561, 196 S.E. 276, 1938 Ga. App. LEXIS 336 (1938). Alleged errors of fact by auditor in finding the damages in not allowing any credit for discounts were questions which should have been submitted to a jury, and it was error for the trial judge to dismiss these exceptions. Haygood v. Smith, 80 Ga. App. 461, 56 S.E.2d 310, 1949 Ga. App. LEXIS 862 (1949). It is reversible error for trial court in a law case to fail to refer to jury exceptions of fact filed to the auditor’s report. Regal Textile Co. v. Feil, 189 Ga. 581, 6 S.E.2d 908, 1940 Ga. LEXIS 340 (1940); Manry v. Hendricks, 66 Ga. App. 442, 18 S.E.2d 97, 1941 Ga. App. LEXIS 531 (1941). A court committed reversible error in a suit where an auditor was appointed, in sustaining the plaintiff’s motion to disapprove and disallow the defendant’s exceptions to the auditor’s findings of fact, and in not submitting such exceptions to the jury, where the case was one at law. Manry v. Hendricks, 66 Ga. App. 442, 18 S.E.2d 97, 1941 Ga. App. LEXIS 531 (1941). Jury trial expressly waived. - When exceptions of fact to an auditor’s report in an action at law are filed, the court has no power to disallow them and dispose of the case without the intervention of a jury, unless the parties expressly waive their right to trial by jury. Philips v. L.A. Miller & Sons, 57 Ga. App. 561, 196 S.E. 276, 1938 Ga. App. LEXIS 336 (1938). Exceptions of fact in a law case must be decided by a jury unless the jury trial is expressly waived. This does not mean merely an implied waiver but that there must be an express waiver. Simonton Constr. Co. v. Pope, 213 Ga. 360, 99 S.E.2d 216, 1957 Ga. LEXIS 383 (1957). It is error to allow jury to pass on questions not raised by any exception of fact. Musselwhite v. Ricks, 55 Ga. App. 58, 189 S.E. 597, 1936 Ga. App. LEXIS 427 (1936). Right to trial by jury under this section in equity cases is statutory only. There is no constitutional provision.

Bemis v. Armour Packing Co., 105 Ga. 293, 31 S.E. 173, 1898 Ga. LEXIS 504 (1898) (see O.C.G.A. § 9-7-17). Judge has discretion to submit exceptions to jury in equity cases. - Under this section, in equity cases submitted to an auditor to whose report exceptions of law and fact are filed, the trial judge can, in the judge’s discretion, decline to submit exceptions of fact to a jury, unless the judge approves them. Henderson v. Lott, 170 Ga. 261, 152 S.E. 98, 1930 Ga. LEXIS 434 (1930) (see O.C.G.A. § 97-17). Exceptions are submitted only when approved by judge. - In an equitable proceeding, exceptions of fact to an auditor’s report are to be submitted to the jury only when approved by the trial judge. De La Perriere v. Williams, 175 Ga. 339, 165 S.E. 214 (1932); Mitchell v. Turner, 190 Ga. 485, 9 S.E.2d 621, 1940 Ga. LEXIS 478 (1940). In equitable proceedings, if exceptions of fact are filed, and the judge approves the same, the same shall be submitted to the jury. Lefkoff v. Sicro, 193 Ga. 292, 18 S.E.2d 464, 1942 Ga. LEXIS 371 (1942). Court not to interfere with trial judge’s discretion in equity cases where not abused. - In equity cases, the appellate court will not interfere with the discretion of a trial judge in disapproving exceptions of fact to an auditor’s report, unless it appears that there has been a manifest abuse of such discretion. Parsons v. Fox, 179 Ga. 605, 176 S.E. 642, 1934 Ga. LEXIS 341 (1934); Christian v. Bremer, 199 Ga. 285, 34 S.E.2d 40, 1945 Ga. LEXIS 303 (1945). The Supreme Court will not control the discretion of the trial judge in overruling exceptions of fact to an auditor’s report in an equity case, unless there was no evidence to support the auditor’s findings. Allen v. Davis, 195 Ga. 167, 23 S.E.2d 665, 1942 Ga. LEXIS 724 (1942). If evidence supports findings, it is not abuse of discretion to disapprove exceptions of fact; but, if the evidence does not support the report of the auditor, it would be an abuse of discretion or error to disapprove the exceptions. Henderson v. Lott, 170 Ga. 261, 152 S.E. 98, 1930 Ga. LEXIS 434 (1930); Parsons v. Fox, 179 Ga.

605, 176 S.E. 642, 1934 Ga. LEXIS 341 (1934). In an equity case, there is no abuse of discretion on the part of the trial judge in refusing to approve an exception of fact, where the evidence is sufficient to support the finding of fact as made by the auditor. De La Perriere v. Williams, 175 Ga. 339, 165 S.E. 214 (1932). An order overruling exceptions will not be reversed by the appellate court if the findings of the auditor are supported by any evidence, even though the evidence may be conflicting. Mitchell v. Turner, 190 Ga. 485, 9 S.E.2d 621, 1940 Ga. LEXIS 478 (1940); Horkan v. Great Am. Indem. Co., 211 Ga. 690, 88 S.E.2d 13, 1955 Ga. LEXIS 429 (1955). Burden of proof on appellant to show auditor’s findings unsupported. - Where error is assigned upon the refusal of the judge to approve an exception of fact to an auditor’s report in an equity case, the burden is upon the appellant to show to the satisfaction of the Supreme Court that the finding of the auditor is unsupported by evidence, the presumption being that the finding is correct; and, where it does not distinctly appear that the finding is unsupported, the judgment refusing to approve the exceptions of fact will be affirmed. Christian v. Bremer, 199 Ga. 285, 34 S.E.2d 40, 1945 Ga. LEXIS 303 (1945). Nature of claim for partnership accounting, dissolution, or injunction. - No provision in the Georgia Uniform Partnership Act or Georgia Limited Partnership Act changes a claim for an accounting, dissolution, or injunction into a legal action or grants a partner the right to a jury trial. Williams v. Tritt, 262 Ga. 173, 415 S.E.2d 285, 1992 Ga. LEXIS 333 (1992). Manner of approval by judge. - This section does not require any formal judgment of approval of the exceptions of fact, and when the judge submits to the jury the issue raised by an exception, the submission of the issue thus made is the equivalent of an approval. At best, the failure of the judge to formally approve the exceptions of fact before submitting the case to the jury is a mere harmless irregularity. Russell v. Mohr-Weil Lumber

Co., 115 Ga. 35, 41 S.E. 275, 1902 Ga. LEXIS 299 (1902); Malette v. Wright, 120 Ga. 735, 48 S.E. 229, 1904 Ga. LEXIS 693 (1904) (see O.C.G.A. § 9-7-17). Right to open and conclude argument. - Under this section, the burden being upon a party excepting to an auditor’s report, the party has the right to

open and conclude the argument, although the party submits to the jury all the evidence contained in the report of the auditor, and the other party submits none. Schmidt v. Mitchell, 117 Ga. 6, 43 S.E. 371, 1903 Ga. LEXIS 128 (1903) (see O.C.G.A. § 9-7-17).

RESEARCH REFERENCES Am. Jur. 2d. 27A Am. Jur. 2d, Equity, §§ 207 et seq., 213 et seq.

27A Am. Jur. 2d, Equity, §§ 207 et seq., 213 et seq.