Grant v. Grant

• Decision Date: 07 February 1947
• Docket Number: 15685.
• Citation: 41 S.E.2d 534,202 Ga. 40
• Parties: GRANT v. GRANT.
• Court: Georgia Supreme Court

41 S.E.2d 534

202 Ga. 40

GRANT v. GRANT.

No. 15685.

Supreme Court of Georgia

February 7, 1947

Aaron Kravitch and Casper Wiseman, both of Savannah for plaintiff in error.

Lewis A. Mills and Julian Hartridge, both of Savannah, for defendant in error.

Syllabus Opinion by the Court.

JENKINS Chief Justice.

1. It is the general rule that, where an auditor has failed to make a ruling upon demurrers or other questions of law properly raised, such a failure should be taken advantage of by motion to recommit, and not by an exception of law filed to such report. Hosher v. Fitzpatrick, 142 Ga. 384, 82 S.E 1065. However, where such a motion to recommit is actually though irregularly urged in connection with an exception of law, this court would ordinarily pass upon the exceptions taken to the order of the lower court overruling such a motion to recommit. But where, as here, it appears that, in the combined exceptions of law and motion to recommit, the movant has invoked and obtained a ruling on the one identical question which he seeks to have the auditor adjudicate upon its being resubmitted, and since such a judgment by the court would preclude any contrary ruling by the auditor, any necessity for a recommitted thus became obviated, and the court did not err in denying the motion to resubmit. The question of law here involved, as adjudicated by the court will be considered in the next division of the syllabus.

2. Where parties go to trial upon the merits of a case without calling the court's attention to demurrers filed to the pleadings, and without insisting upon a ruling thereon, the defendant thereby waives any rights that he might have to a hearing on the demurrers, and the court does not err in treating them as abandoned. Chambers v. Harlan Fuel Co., 32 Ga.App. 199, 122 S.E. 802; Americus Grocery Co v. Brackett & Co., 119 Ga. 489(7), 46 S.E. 657; Wilkes v. Carter, 149 Ga. 240, 241(1), 99 S.E. 860. But see in this connection, Kelly v. Strouse & Bros., 116 Ga. 872, 873 (5)(a),

43 S.E. 280; Waldrop v. Wolff & Harp, 114 Ga. 610, 611, 613(3), 40 S.E. 830.

3. In an equity case, exceptions of fact to an auditor's report are to be submitted to a jury only when approved by the trial judge; and an order overruling such exceptions will not be reversed by this 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 and cases cited.

(a) The instant suit in the instant case which contained prayers for an injunction and accounting, did not lose its equitable character merely by reason of the fact that the trial court although finally granting a permanent injunction as prayed for by the petition against her insolvent son, dissolved the temporary injunction pending the hearing of the case by the...