Vanduzer v. McMillan

Warner, C. J. Eeluctant as this Court always is to interfere with the discretion of the Circuit Courts, in granting, or refusing to grant, the continuance of causes, yet, upon the statement of facts contained in this record, w’e think the ends of justice required that a continuance of the cause, should have been allowed by the Court below upon the showing made therefor. The intrinsic difficulties springing out of the complicated state of facts embraced in the auditor’s report, covering as it did, mercantile transactions for years between the partners, unnecessarily required time for examination. The report of the auditor was made at the opening of the Court, in which the defendant’s counsel, as they state on oath, were necessarily engaged in the general business of the Court, which prevented them from devoting a sufficient portion of their time to a thorough examination, and review of the auditor’s report in connection with the partnership concerns, one of the partners, whom the defendant represented, being dead. Whilst it is the duty of the Court to prevent unnecessary delay in the trial of causes, yet, it should be careful not to prejudice the substantial rights of parties, by forcing them to trial when they cannot reasonably be expected to do full and complete justice to their case. There were several points made, and exceptions taken, to the auditor’s report in this ease, which, in the view we have taken of the Auditor’s appointment by the Court below, it is necessary to decide, inasmuch, as we sustain the exception made to the auditor’s appointment. The appointment of the auditor being irregular, his report necessarily falls with it. In this case, it appears from the record, that E. P. Edwards, Esq., was appointed auditor by the Chancellor in vacation, on the 21st June, 1867, upon the ex parte application of the complainant’s solicitor, for the purpose of investí [308] gating the accounts between the parties, and to make report thereon to the next term of the Superior Court. The appointment of the auditor is excepted to, upon the ground that it was made without the consent of the defendant, and that he protested against it so soon as he had notice of it. The defendant also excepts to the order of the Court allowing the auditor the sum of five hundred dollars for his services, and requiring the defendant to pay two hundred dollars of it, as part of his expenses in administering the estate of his intestate. 2. The decision of this question involves the construction of the several sections of the Code, in regard to the appointment of Auditors by a Court of Chancery, in this State. In our judgment the provisions of the Code supercede the Act of 1858 upon this subject. By the 3042 section of the Revised Code, it is declared, that “ in equity causes the Court may refer any part of the facts to a master, or auditor, and his report thereon shall be prima facie the truth, after allowance by the Court; either party having the liberty to except. But the final decision upon the facts shall be by a special jury.” The 3082 and the 3043 sections of the Revised Code declare, that “ in all cases involving account, either party, as a matter of right, may apply to the Judge either in term, or vocation, for the appointment of an auditor, who shall, after notice, sit and hear evidence submitted by either party, investigate their accounts, and report the result thereof to the Court. The report so made may be objected to by either party on the ground of illegal rejection, or admission of evidence, or any other ground impeaching its propriety, which objections shall be heard and decided by the Court. The report, when finally accepted, shall be admitted as evidence to the jury with such instructions as to the effect to be given to it, as the Court shall give under the circumstances of each case.” By the the 4143, 4144 and 4145 sections of the Revised Code, it is declared, “ every Chancery Court in this State may appoint a master, to whom it may refer such matters of account as are complicated in their nature; or by consent of parties may [309] appoint an auditor to investigate, and report upon similar matters in dispute. Such, master, or auditor, may subpoena witnesses, administer oaths, and hear testimony on any disputed fact, always giving notice of his sittings to the parties, or their solicitors. The report of the master, or auditor, when returned to Court, shall be subject to exceptions for such time as the Court may allow; and the exceptions so filed shall be the only issues of fact submitted to a jury, so far as the matters referred are concerned. When submitted the jury shall return a verdict on each exception — seriatim. The fees of the master, or auditor, shall be determined by the Court, unless agreed on by the parties.” The three first sections of the Code already cited, are to be found under the head of “Equity,” that is to say, under the general principles of equity, and under the general principles of equity relating to “Account and Set Off.” The last three sections of the Code before cited, are to be found under the head of “ Equity Pleading, and Practice.” Taking all the sections of the Code upon this subject, and construing them all as one act in relation to the appointment of auditors, the intention of the legislature is most clearly manifested, in our judgment, that an Auditor cannot be appointed in a cause pending on the chancery side of the Court, without the consent of the parties thereto. The last sections of the Code are intended to regulate the practice in that Court. By the 3045 section of the Code, it is declared that “generally, equity jurisprudence embraces the same matters of jurisdiction, and modes of remedy in Georgia, as was allowed and practiced in England.” The 4143 section of the Revised Code confers the authority upon every Chancery Court in the State, to appoint a master, to whom complicated accounts are to be referred. The duties of a master in chancery in England, are well defined in the books regulating the practice of the Court in that country. The master is an officer of the Court, to whom complicated accounts may be referred for examination, and report, at the discretion of the Court, with, or without the consent of the parties, or by consent of parties, the Court may appoint an auditor to investigate and report upon [310] similar matters in dispute. This consent of the parties to the appointment of an auditor by the Court is founded Upon good reason, and justice. The Court might appoint an auditor very objectionable to one of the parties for some cause entirely unknown' to the Court, and then require that party, as in this case, to pay such auditor for his services, out of his own pocket, his proportion of the expense, whereas, if he consented to his appointment he would have no just cause of complaint — such may have been the intention of the legislature in regulating the practice of the Court, in requiring the consent of the parties to the appointment of an auditor, (which was not required, in any of the previous sections of the Code,) in order to prevent that and similar results. If the parties do not consent to the appointment of an auditor, then the Court can refer the matters of account to the master, who is an officer of the Court, without his consent. In our judgment, the 4143 section of the Revised Code regulates the practice of the Court upon this question, and as we think it the better rule, we adopt it as the rule of practice in such cases. The appointment of the auditor in this case having been made, without the consent of the defendant, he had no authority to act as such, so far as the rights of the defendant were concerned, in the matters referred to him under that appointment. There were several other grounds of error assigned to the rulings of the Court below, some of which were abandoned on the argument before this Court. There is one ground, however, taken in the record, which was urged before this Court, upon which, our judgment is invoked, and that is, the charge of the Court in relation to the commissions allowed the complainant, as an attorney at law, for collecting the assets of the copartnership. The Court charged the jury “ that if the complainant’s services were rendered outside of the business of the firm, and as an attorney, he was entitled to compensation for them.” The defendant insists that there is no evidence in the record to authorize such charge. We find no direct evidence contained therein, that the complainant was an attorney at law, certainly none, that he received [311] the copartnership assets to collect in that capacity. The only evidence we find relating to his professional capacity is that of Mr. Edwards, the auditor, who states that “the only evidence before him in relation to commissions, was the statement of McMillan, who stated in his place that ten per cent, was a reasonable fee for such collections, and he having knowledge of such matters as a lawyer, thought it a reasonable fee.” 3. But if we concede that the complainant was an attorney at law, still, as a partner of the mercantile firm, he would not be entitled to charge commissions for collecting the notes, and accounts, of that mercantile firm as a partner, as against his copartner, in the absence of any special agreement to that effect; the legal presumption is, that he was to collect the debts due to the firm, as partner, for the benefit of the concern. If, however, it had become necessary to institute suits for the collection of the debts, and such suits were instituted by him as an attorney at law, he might be allowed for his necessary professional services the same commissions as would have been required to have been paid to some other attorney at law, for the same services, in the absence of any evidence, that his professional services as an attorney were to be rendered'for the benefit of the firm, under the copartnership contract. The record in this case, however, discloses the fact that the complainant placed several hundred dollars of the debts due this copartnership firm in the hands of another attorney for collection, and that instead of paying ten per cent, for such collections, he only paid him two and a half per cent, therefor, so that in any event, the verdict allowing the complainant ten per cent, for collections, amounting to one thousand dollars, is wrong, and ought to be set aside. Let the judgment of the Court belbw be reversed.