Poullain v. Poullain , 72 Ga. 412 ( 1884 )

Hall, Justice.

1. In the bill of exceptions, the judge certifies that 'he granted a new trial in this case upon a special ground while the order directing it is general and specifies no particular ground, as it appears in the transcript of the record. We are governed by the latter, and as there is much conflict in the evidence bearing upon the main points in the case, and a considerable degree of irregularity in the proceedings had on the trial, and no small amount of confusion in the several findings by the jury of the issues submitted io them, wo think the court was right in ordering another hearing ; at least, that he did not abuse his discretion in so doing. Here we might, and probably ought, to leave this case, without determining any of the numerous questions made by either of the bills of exceptions and writs of error sued out by each of the parties, but as our views have been invoked upon several of these points, Ave will briefly notice them.

2. When exceptions to a master’s or auditor’s" report in chancery are sent to a jury, they should pass upon them only so far as the matters of fact submitted are concerned, and must return a verdict on each exception seriatim. Code, §1-203. This' does not authorize them, as Avas done in this case, Avholly to pass over the exceptions made by one of the parties, without any return as to either of them, or* having found on each of those submitted by the opposite party, to aggregate the sums found under each particular head, whether they do this correctly, or very inaccurately and erroneously, as in this instance. It is the duty of the chancellor to make up his decree from the report of the auditor or master, as corrected by the several findings of the jury. But from the ambiguous and doubtful character of these several findings, without calling to his aid matter dehors the record, this would have been impossible ; indeed, to a stranger to t*he proceeding, the matter, as presented by the record, is wholly unintelligible.

3. We do not think the statute of limitations, either as to the general prpvision found in the Code, or the special act of March 16th, 1869, applicable to this case. Certainly no cause of action could accrue during the minority of these complainants, and during the continuance of the fiduciary relations between them and the defendant. There was, therefore, no error in refusing to charge, at defendant’s request, upon this subject.

4. But we are of opinion that the court should have charged upon the effect of defendant’s final discharge from the guardianship of the elder of the two complainants by the ordinary. Letters of dismission granted to a guardian, under section 1849 of the Code, like other judgments of courts of competent jurisdiction, are a bar as to the matters covered by them, unless set aside for fraud in their procurement or for other sufficient cause. 4 Ga., 516 ; 9 Ib., 247 ; 15 Ib., 346.

This settlement cannot be opened for any other cause. The right to re-open a final settlement between the guardian and ward, within four years after it is made, relates to settlements between the parties themselves, without the interposition of the court of ordinary, and not to discharges of the guardian by that court upon final settlement, and after due citation and publication of notice. This right to re-open within the time specified, is regulated by Code, §1847, which should be read in connection with Ib.,, 1840 ; See also 59 Ga., 793 ; 68 Ib., 741.

5. Without expressing any opinion whatever as to the testimony developed by this case, which, for obvious reasons, would be improper, we refer to Beall et al., ex'rs, vs. Clarke, and Hughes vs. Hughes, both decided at the last term of this court, as fixing the amount and character of the evidence essential to decreeing the specific performanee of a parol gift of land by a parent to a child. The result of our research is, that the plaintiffs’ bill of exceptions can. not be, while that of the defendant is, sustained, so far as to tax the former in both cases with cost.

Judgment affirmed.