FARRAR v. AINSWORTH, executrix., 207 Ga. 185, 60 S.E.2.d 366 (1950)

Status: DECIDED

Docket Number: 17168

Parts: ATKINSON, Presiding Justice.

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Wright, Rogers, Magruder & Hoyt, for defendant.Paul H. Field, for plaintiff.

While a bill of exceptions assigning error only on an order overruling exceptions to an auditor's report is not a final judgment, nevertheless, where the court goes further and makes the auditor's report the judgment of the court, thus adjudicating the rights of the parties on the merits, such order is a final judgment, and not a mere overruling of exceptions to the report.

Sara Agnes Farrar filed in Whitfield Superior Court, against Floyd F. Farrar, a petition to quiet title to certain property and for other equitable relief. By consent of the parties the case was referred to an auditor to pass upon all questions of law and fact. After hearing evidence the auditor filed his report, which, after listing certain findings of fact and conclusions of law, found for the defendant, and assessed the costs against the petitioner. On exceptions by the petitioner to the auditor's report, the court on March 31, 1949, rendered the following judgment: "The above . . . case coming on for hearing on exceptions filed to the auditor's report, . . after argument, the exceptions . . . are overruled; and the report of the auditor . . . is approved and made the judgment of the court." The petitioner filed exceptions pendente lite, but failed to file a bill of exceptions within the time allowed by law. Thereafter execution issued for costs against the petitioner, who filed an affidavit of illegality on the ground that no final judgment had been entered. The illegality was traversed by the defendant.

During the pendency of the action the defendant, Floyd F. Farrar, died and his executrix, Dorothy Farrar Ainsworth, was substituted as a party in his place.

An agreed statement of facts, showing the case as above set forth, was entered into by counsel for both parties, and the court heard the illegality proceeding by consent without a jury. After hearing argument the court passed an order finding against the affidavit of illegality and in favor of the traverse, and ordered that the levy proceed.

Sara Agnes Farrar made a motion for new trial, which was amended by the addition of one special ground, complaining that the order on the auditor's report was not final, and she excepted to the overruling of that motion.

(After stating the foregoing facts.) Both sides concede that the only question for determination is whether or not the order of the court on the auditor's report was a final judgment.

While a bill of exceptions assigning error only on an order overruling exceptions to an auditor's report is not a final judgment within the meaning of Code 6-701 ( Prater v. Crawford, 143 Ga. 709 (3), 85 S. E. 829; Murphy v. District Grand Lodge, 148 Ga. 648, 97 S. E. 858; Huson v. Bank of Covington, 158 Ga. 434 (2), 123 S. E. 742; Lingo v. Rich, 169 Ga. 628, 151 S. E. 387; Moncrief v. Rimer, 181 Ga. 4, 181 S. E. 169), nevertheless, where as here the court went further and made the auditor's report the judgment of the court, thus adjudicating the rights of the parties on the merits, such order was a final judgment, and not a mere overruling of exceptions to the report.

The above ruling accords with the decision in Kency v. District Grand Lodge, 148 Ga. 515 (97 S. E. 439), where the court, after overruling the exceptions to the auditor's report, went on to approve the auditor's report and make it the judgment of the court. Counsel for the plaintiff, however, failed to except to that portion of the order which approved the auditor's report and made it the judgment of the court, but took exception only to that part of the order overruling the exceptions. This court held that the exception as taken was not an exception to the final judgment, but was an assignment of error merely upon the order of the trial court overruling the plaintiffs' exceptions of law.

Since the original case was an action in equity, the trial court was not required to submit to a jury the questions of fact raised by the exceptions. Code, 10-402; Mitchell v. Turner, 190 Ga. 485 (3) (9 S. E. 2d, 621). The trial court was, therefore, within the exercise of its discretion in disapproving the exceptions and rendering judgment in accordance with the auditor's report.

Judgment affirmed. All the Justices concur.