Bell v. Barnes

• Decision Date: 29 June 1939
• Docket Number: 6 Div. 467.
• Parties: BELL v. BARNES ET AL.
• Court: Alabama Supreme Court

190 So. 273

238 Ala. 248

BELL v. BARNES ET AL.

6 Div. 467.

Supreme Court of Alabama

June 29, 1939

Appeal from Circuit Court, Tuscaloosa County; Henry B. Foster Judge.

Bill for accounting by L. F. Barnes and J. S. Norris, individually and as partners under the firm name of Barnes & Norris Gin &amp Warehouse Company, against Vera Bell, as administratrix C. T A. of the estate of J. W. Bell, deceased. Respondent, being dissatisfied with a decree in her favor, appeals.

Affirmed.

E. L Dodson, of Tuscaloosa, for appellant.

Foster, Rice & Foster and Gordon Madison, all of Tuscaloosa, for appellees.

FOSTER Justice.

This appeal is from a decree of the circuit court, in equity, confirming the findings of the register on reference, and overruling exceptions to it, and rendering a final decree in favor of appellant against appellees for $150.20. Appellant being dissatisfied with the amount of the decree, and insisting that the recovery should have been for a larger sum, has brought this appeal.

The register first made a report on January 21, 1938, that on February 19, 1934, appellees had paid appellant's intestate $583.58, but that they owed him an additional sum of $616.10, which with interest to the date of his report amounted on that date to $772.92. It is for this amount, as a minimum, that appellant now claims a judgment, although exceptions were filed to the report.

On February 10, 1938, the register made representation to the court that he had been informed that he had allowed appellant certain credits which were claimed to be erroneous, and inadvertently allowed, and requested the court to resubmit the matter to him in order that said errors may be corrected. The court on that day made a decree directing the register to make a supplementary report, and that the cause be resubmitted to him to make such corrections as he found proper to be made.

Appellant insists that the court was without such power. The rule in this connection is that the matter of a re-reference is within the sound judicial discretion of the court. Sims Chancery Practice, section 609; Roy v. O'Neill, 168 Ala. 354, 52 So. 946; Nunn v. Nunn, 66 Ala. 35; 53 Corpus Juris 796, section 302. There is no abuse of such discretion here made to appear.

On February 14, 1938, the register made a supplementary report in which he states that on such hearing he examined two witnesses under oath touching certain credits which he had given appellant. This was done in the presence of counsel for both parties, but over the objection of counsel for appellant. The testimony of those witnesses was not taken down in writing, as required by Rule 88, Chancery Practice. But there was no exception to the register's neglect in not having their testimony reduced to writing, and no action on such failure was sought of the court, nor was a ruling made in that connection. So that for such failure there is nothing presented to us for review.

In the supplemental report, the register found that he had allowed a credit of $420.29 on April 1, 1930, and had made a charge of $171.91, both of which should be eliminated since the item was included in another entry, so that the sum of $248.38 was the proper net amount of the erroneous credit, and which with interest, making a total of $325.55, the register took from the credits allowed appellant in his former report. Also appellant was credited with $155.48 on July 25, 1932, which was included in a credit allowance of $669.20 as of June 1, 1932, which certain adjustments makes a net amount of $174.90, which the register deducted from the credits which he had previously allowed. So that there was a total sum of $500.45 ($325.55 and $174.91) deducted from the amount previously found to be due appellant.

The register made alternative calculations of interest leading to four different results:

1. By allowing all interest charges shown by the account books of appellees, Bell would still owe them as of February 19, 1934, $306.49.

2. By deducting certain charges shown by an audit referred to, the amount would be $142.36.

3. If the legal rate of interest is calculated appellees would be due appellant as of February 19, 1934, $115.65.

4. If no interest is allowed, appellees would owe appellant $1733.34.

But made his report on the basis of the third alternative above, or $115.65, which with interest amounted to $150.25 on the date of the final decree, for which a judgment was rendered for appellant as we have stated.

Exceptions were filed by appellant to the original report, in which he concurred except as to that feature which allowed legal interest. He also excepted to the supplementary report. Upon the authority of Mahone v. Williams, 39 Ala. 202, 225; Woodruff v. Smith, 127 Ala. 65, 28 So. 736, the exceptions were too general.

But the argument here made and citations to the exceptions relate only to the allowance of interest and the two items which were deducted from the credits allowed appellant as shown by the supplementary report. We waive for the moment the...