Mayo v. Keaton

CourtSupreme Court of Georgia
Writing for the CourtHall, J
Citation78 Ga. 125,2 S.E. 687
PartiesMayo v. Keaton, Adm'r.
Decision Date26 February 1887

2 S.E. 687
(78 Ga. 125)

Keaton, Adm'r.

Supreme Court of Georgia.

February 26, 1887.

Equity PracticeAuditor's ReportTrial of Exceptions.

Where exceptions of fact are filed to an auditor's report, the jury must pass upon them seriatim; and this requirement cannot be met by finding an aggregate amount for one party, or by finding generally for the other; nor can an omission to find as to any one of the issues be supplied by the court.

Error from Dougherty county.

G. J. Wright, R. Hobbs, D. H. Pope, and L. Amheim, for plaintiff in error.

W. E. Smith, R. F. Lyon, and D. A. Vason, contra.

Hall, J. This case was tried upon exceptions made by both parties to the auditor's report. The jury, contrary to the instructions of the court, failed to find on the exceptions seriatim, but returned a general verdict in favor of the complainant for a specified amount of money. This verdict was received and entered on the minutes of the court without objection on the part of the defendant as to its sufficiency when it was so received. A motion for a new trial, upon this and several other grounds, was made, and overruled by the court, to which ruling the defendant excepted.

It is conceded by counsel for the complainant that the finding was not in accordance with but directly opposed to law, but they insist that the result upon the whole case was what it should have been; and that, if there was any error as to the amount found, it was against the complainant, and of this the defendant could not complain. The requirement is positive that the jury shall pass seriatim on the exceptions; and it cannot be met by finding an aggregate amount for one party, or by finding generally in favor of the other, as was expressly held in Poullain v. Poullain, 72 Ga. 412, and was substantially repeated in the same case when it came before this court at the March term, 1886. These exceptions were the only issues submitted to the jury, and the Code, § 3559, declares in express terms that "the verdict must cover the issues made by the pleadings." While it is true that verdicts must have a reasonable intendment, and must be so construed as to prevent their being avoided except from necessity, (Code, § 3561,) yet it is equally true that under no proper rule of interpretation or construction can an omission to find as to any one of those issues be supplied; as was held in Wood v. McGwire's Children, 17 Ga. 361, and in Cobb v. Wise, 71 Ga. 103, where it was said: "While verdicts are to...

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