Fuqua v. Hadden , 192 Ga. 654 ( 1941 )

1. It is a sufficient reason for overruling an exception of law to the findings of an auditor in an equity case, when the exception involves consideration of the evidence, that the excepting party does not set forth in connection with such exception the evidence necessary to be considered nor attach it as an exhibit, nor make definite and appropriate reference to where such is to be found in the brief of the evidence filed by the auditor, even if such definite and appropriate reference to where such evidence may be found in the auditor's brief will suffice when the same is not incorporated in or attached to the exceptions as an exhibit.

2. It was not erroneous to overrule exceptions of law to an auditor's report when the question whether the exception is meritorious or not can not be determined without an examination of certain documents therein referred to, if the documents themselves are not incorporated in the exceptions or attached thereto and made a part of the exceptions which were predicated thereon.

3. The report of the auditor being adverse to the contentions of the plaintiffs in error, except his finding as to liability against some of the defendants for a lesser amount than that sued for, its effect being to acquit two attorneys, who were defendants, of all liability, and acquit them of any wilful misconduct as charged, and no exception appearing to have been filed to the rulings of the auditor as to them; and upon consideration of such of the exceptions as were filed the same were overruled, the fact that the trial judge in entering a final decree on such report inserted a clause to the effect that the petition should as to said defendant attorneys be dismissed, affords no basis for a reversal of the judgment.

No. 13820. SEPTEMBER 10, 1941. H. W. and T. L. Fuqua, as executors of the estate of B. T. Fuqua, sued A. O. Hadden individually and as guardian of the property of B. T. Fuqua, Fidelity Casualty Company of New York, and two other defendants. Among other prayers, an injunction and receiver were asked for. The case was referred to an auditor. His findings were in favor of the defendants, except that as against some of the defendant he found that the plaintiffs were entitled to a judgment. As to two of the defendants he found no liability, and to this finding no exception was filed. Apparently the plaintiffs filed no exceptions of fact to any finding of fact by the auditor. Exceptions of law were filed by the plaintiffs, as follows:

"1. Plaintiffs except, as a matter of law, to the ruling of his honor the auditor, appearing on page 10, paragraph 3, of his report as follows: `I am only considering whether the acts and expenditures done and made under these proceedings were authorized by law, as within the jurisdiction of the ordinary. I am not passing upon the establishment of fraud by facts,' the error being, as plaintiffs contend, that they alleged conspiracy and fraud, and the evidence introduced by the plaintiffs sustained the same and required a ruling thereon, as a matter of law.

"2. Plaintiffs except, as a matter of law, to the ruling of his honor the auditor, appearing on pages 11 and 12, and beginning with paragraph 3 of the report, as follows: `This proceeding is dated September 15, 1936, and is rather extraordinary; but as I am required by law to respect the prima facie value of the facts alleged, and the order thereon entered, after due inquiry and consideration it is my opinion that this order is authorized by law,' the error being, as plaintiffs contend, that it appears upon the face of the report, and the facts reported in connection with said ruling, that the said order referred to is void and shows a devastavit of $245 for which the defendants are accountable to the plaintiffs.

"3. Plaintiffs except, as a matter of law, to the ruling of his honor the auditor, appearing on pages 23 and 24, paragraph 4, of his report, in substance as follows: `The testimony of T. L. Fuqua shows that he qualified as coexecutor of his father's estate; and in referring to the application brought by the guardian to sell certain timber, the witness testified, on page 30, that he had no notice that an application was filed for fees, and that he gave no one authority to use his name in the court proceedings for such fees. . . The application and order for attorney's fees has been made the judgment of a court of competent jurisdiction and has been complied with, and whether or not this witness had notice is immaterial,' the error being, as plaintiffs contend, that the said order and judgment referred to was an order of the judge of the superior court of Laurens County, directing the guardian to pay the guardian's attorneys fees in connection with an action brought by the guardian to sell the timber off the ward's lands, and which action had been already dismissed by the court three days before said petition for fees was presented, and it clearly appears from an exemplified copy of said proceedings introduced in evidence in support of the allegations contained in paragraphs 9 and 10 of the plaintiffs' amendment to their bill that the judge of the superior court of Laurens County was without jurisdiction to pass such order, and that for other reasons the said order was void and a mere nullity, and should be so adjudged. That the said void order and the disbursement thereunder show a devastavit of $700, for which the defendants are accountable to the plaintiffs.

"4. Plaintiffs except, as a matter of law, to the ruling of his honor the auditor, appearing on page 19, paragraph 8, of his report, in substance as follows: `This is an application dated April 15, 1938, requesting extra compensation for the guardian at the rate of $10 a month from April 13, 1936, to the corresponding period of 1938, making a total of $240. This sum was granted by the ordinary. The allegations are the general ones set up by administrators or guardians for extra compensation, and ample reason appears to be behind the request,' the error being, as plaintiffs contend, that since the guardian had never made any proper returns to the court of ordinary, as ruled by the auditor on pages 35 and 36 of his report, and that since it appeared of record in the court of ordinary at the time the said order was granted that the guardian had never made an inventory or accurate exhibit or any exhibit of the assets of the ward's estate, as required by law, and had never submitted any vouchers to the court as to expenditures made, and that the ordinary to whom said returns, exhibits, and vouchers should have been submitted for approval during the years 1936 and 1937 was then dead and had never approved, as appears of record, any act of the said guardian, the said order is upon the face of the record fraudulent and void, and the disbursement made thereunder of $240 shows a devastavit for which the defendants are accountable to the plaintiffs.

"5. Plaintiffs except, as a matter of law, to the ruling of his honor the auditor, beginning on page 26, paragraph 10, and continuing to page 37 of said report, where the ruling complained of is made in substance as follows: `I must presume, as a matter of law, that these accounts were examined and compared with the vouchers, and that the ordinary was satisfied of their correctness. This presumption the law places upon me, and there is no evidence to overcome the presumption. There was unquestionably carelessness and indefiniteness both in the guardian and in the court in this particular, but I can not as a matter of law disqualify these returns from the evidence in the absence of their prima facie character being rebutted,' the error being, as plaintiffs contend, that while the returns of the guardian may have been admissible in evidence, as ruled by his honor the auditor, they did not under the law or the findings of the auditor have or carry any `prima facie character' to be rebutted, as ruled by him, in that it appears upon the face of the report and on pages 35 and 36 thereof that the said returns were not, as a matter of law, entitled to be approved or put on record, and it clearly appearing from the exemplified copy of said returns and the report that the said returns were recorded without any order approving them or allowing the same to record, and that the only documents purporting to be orders approving the said returns were separate and distinct documents introduced at the last hearing before the auditor, and which were put on record independently of the returns, during said hearing before the auditor, solely for evidentiary purposes.

"6. Plaintiffs except, as a matter of law, to the ruling of his honor the auditor, beginning on page 37, paragraph 12, of his report, as to the plaintiffs' charge that the signature to the document purporting to be an order signed by the deceased ordinary E. D. White, approving the returns for the year 1936, was not signed by said ordinary, and that the signature was a forgery, the ruling of the auditor continuing to page 39 of his report where he makes the ruling complained of, and in substance as follows: `In obedience to the rule that a judicial officer is presumed in law to do those acts required of him, and in consideration of the extenuating circumstances surrounding the signor of the document in question, I am inclined to rule as a matter of law that the objections are without merit, and that the signature is genuine,' the error being, as plaintiffs contend, that it appears conclusively and without contradiction from the evidence which is made a part of the report, and also from a comparison of said signature on said order with five other admittedly genuine signatures of the deceased ordinary (photostatic copies of all six being in the record), that the signature on the said purported order is not the signature of the said deceased ordinary, and is a forgery, and should be so held as a matter of law.

"7. Plaintiffs except, as a matter of law, to the ruling of his honor the auditor on page 39, paragraph 13, of his report, wherein the auditor allows the guardian credit for $638.10, representing six withdrawals by checks from the bank, signed by the guardian and his surety; the error being, as plaintiffs contend, that it appears upon the face of the report and in said ruling that the said checks were drawn and the disbursements made long after the death of the ward, and the said disbursements were illegal and were an unlawful usurpation of authority, and was done over the protests of the plaintiffs, and the defendants are accountable to the plaintiffs for the said sum of $638.10, as a matter of law.

"8. The plaintiffs except, as a matter of law, to the finding of the auditor on page 40, paragraphs 1 and 2, of his report, in substance as follows: `The bill of the plaintiffs stands on the prayer and proofs relating to an equitable accounting. It fails on the ground of fraud. I find that all parties are exonerated from this charge. The guardian, his attorneys, and the court of ordinary can not be commended for the manner in which this estate has been handled, and equally so they can not be condemned by fraud. . . As to the misapplication and misappropriation by the guardian or other parties in concert, there is no evidence to show a wilful and intentional malversation. . . The record of the handling of this estate by all parties is attributable in my opinion, to the too often encountered want of comprehending and appreciating the unalterable and uncompromising duties and responsibilities of the fiduciary relationship;' the said findings of his honor the auditor being assigned as an error of law, in that the same appear from the report to be merely generous and charitable conclusions wholly unsupported by any fact or circumstance, and are contrary to the other findings of the auditor based upon the evidence, and which in substance are as follows: On pages 35 and 36 of his report the auditor finds, `I must look to the testimony to learn more of the guardian's use of alleged vouchers. On page 104 of the transcript he states that when he paid any money to Harville (plaintiffs' witness) for the support of the ward, he always furnished him with receipted vouchers. When asked if he got vouchers for other payments he answered, "In most cases I did, and in some I used canceled checks." He did not have any vouchers with him. . . As to an inventory he practically admits that he did not file one with the ordinary. . . His returns do not show "an accurate exhibit" of the property of the ward. . . The testimony is silent as to whether such accurate exhibit and inventory of property was ever made or exhibited to the ordinary for consideration. . . The returns are incomplete.' Again, on page 45, the auditor reports that the guardian made illegal expenditures and had been unfaithful to his trust in the performance of his duties.

"9. Plaintiffs except, as a matter of law, to the findings of his honor the auditor on page 41, paragraph 3, of his report, wherein he approves a distribution and division of the personal property made by the guardian several months prior to the death of the ward, and which under the evidence the auditor valued at $1000 or more; the error being, as plaintiffs contend, that while said paragraph is classified as a finding of fact, the same is essentially a ruling of law, it appearing upon the face of the report and from the evidence that the said division was an unwarranted usurpation of authority, and that the defendants are accountable to the plaintiffs for said sum as a matter of law.

"10. Plaintiffs except, as a matter of law, to the calculation of his honor the auditor, appearing on page 44, paragraph 8, of his report, as follows: `I find as a matter of fact that the total income coming into the hands of the guardian to be the sum of $4018.75,' the error being, as plaintiffs contend, that his honor the auditor in arriving at the said sum appears to have merely adopted the alleged income appearing on the unapproved returns of the guardian, whereas it was found and appears from the report that the guardian did not make an `accurate exhibit' of the property, and that he made `incomplete returns,' and it further appearing on pages 3 to 27 of the evidence that the guardian did not make true and correct returns, in that he did not therein or elsewhere report or exhibit to the court the following farm produce and property received from share-croppers Bracewell and Latimore, to wit, 40 bales of cottonseed, 595 bu. of corn, 150 bales of hay, 1000 bdls. fodder, and one load of watermelons; that the guardian did not by said returns or elsewhere report to the court of ordinary any account sale of large quantities of cotton received by him from the plantation of the ward, showing to whom it was sold, when it was sold, or what price he received for it."

These exceptions of law were overruled. Error is assigned on that decision, and on that part of the final decree, after the judge had approved in toto the auditor's report, ordering that the case be dismissed as to the two defendants referred to above. 1. Though having certain elements in common with some of the other exceptions, the one numbered 10 in the preceding statement of facts contains a feature not embodied in any of the others; and for that reason we shall deal with it first.

We feel safe in declaring that in an equity case, when the exceptions involve consideration of the evidence, the exceptor must set forth in connection with each exception the evidence necessary to be considered, or attach it as an exhibit, or, to qualify what is just stated with the further sentence, that in such a case the exceptions should at least point out definitely where the evidence is to be found. Butler v. Georgia AlabamaRailway, 119 Ga. 959 (47 S.E. 320); Green v. ValdostaGuano Co., 121 Ga. 131 (48 S.E. 984); Weldon v. Hudson,120 Ga. 699 (48 S.E. 130); Perkins v. Castleberry,122 Ga. 294 (50 S.E. 107); First State Bank v. Avera,123 Ga. 598 (51 S.E. 665); Orr v. Cooledge, 125 Ga. 496 (54 S.E. 618); Baxter v. Camp, 126 Ga. 354 (54 S.E. 1036);Brock v. Wildey, 132 Ga. 19 (63 S.E. 794); Lively v.Inman, 135 Ga. 10 (68 S.E. 703); Armstrong v. AmericanNational Bank, 149 Ga. 165 (99 S.E. 884); Faucett v.Rogers, 152 Ga. 168 (108 S.E. 798); Board of Lights Waterworks v. Niller, 155 Ga. 296 (116 S.E. 835); Barnes v. Commercial Credit Co., 161 Ga. 605 (131 S.E. 476);Miller v. Gibbs, 161 Ga. 698 (132 S.E. 626). It has often been held that the rule as to what exceptions of fact in an equity case should contain applies as well to exceptions of law when they involve a consideration of the evidence on which the auditor based his findings. Butler v. Georgia AlabamaRailway, supra; Weldon v. Hudson, supra; Perkins v.Castleberry, supra; Armstrong v. Winter, 122 Ga. 869 (50 S.E. 997);First State Bank v. Avera, supra; Collinsville Granite Co. v. Phillips, 123 Ga. 830 (51 S.E. 666); Winkles v.Simpson Grocery Co., 132 Ga. 32 (63 S.E. 627); McCord v.Jackson, 135 Ga. 176 (69 S.E. 23); Barnes v. CommercialCredit Co., supra; McCoy v. Johnson, 161 Ga. 638; Miller v. Gibbs, supra. It has frequently been decided that a failure to comply with this rule is a sufficient reason for overruling the exceptions of law. Butler v. Georgia Alabama Railway, supra; Perkins v. Castleberry, supra; Armstrong v.Winter, supra; Linder v. Whitehead, 125 Ga. 115 (53 S.E. 588); Winkles v. Simpson Grocery Co., supra; McCord v.Jackson, supra; Smith v. Wilkinson, 143 Ga. 741 (85 S.E. 875); Jones v. Laramore, 149 Ga. 825 (102 S.E. 526);Faucett v. Rogers, supra; Board of Lights Waterworks v.Niller, supra; Miller v. Gibbs, supra.

In several of the cited cases the duty of the exceptor in the situation presented is said to be to set forth in connection with each exception, or to attach as an exhibit, or to "point out by appropriate reference to the auditor's brief of the evidence" those portions of the evidence relied on by him. In other cases the expression is, "or at least point out to the court where such evidence is to be found in the brief of the evidence prepared and filed by the auditor." In none of the cases where language was used tending toward the view that the rule would be complied with if the party excepting pointed out in his exception by reference to the auditor's brief where such evidence is to be found, was that specific question involved, unless it was in Board ofLights Waterworks v. Niller, supra; and therefore any language therein which seems to imply that such reference would suffice is obiter since, save in the case last referred to, in each instance the court ruled that the exceptions were not in proper form. In such a situation, to declare that they would "pass muster" if they had contained something else, was manifestly a question on which the court could express no authoritative opinion. An examination of the record in Board ofLights Waterworks v. Niller, supra, shows that in each of the exceptions in that case which involved consideration of the evidence reference was made to the pages of the auditor's brief where the evidence relied on could be found. But they did more than this. Such exceptions, when referring to the oral testimony, set forth the same in substance, with the names of the witnesses, and as to some the entire testimony was attached as an exhibit. We are not holding in the instant case that to merely designate in the exceptions the pages of the auditor's report where the evidence relied on may be found is sufficient. In Torras v. Raeburn,108 Ga. 345 (33 S.E. 989), may be found the following: "The bill of exceptions assigns error upon the judgment of the court in overruling the exceptions filed by the defendants to the auditor's report, and refers to the record for such exceptions. The exceptions contained in the record which complain of the rulings of the auditor in the admission and rejection of evidence do not set forth the evidence admitted or rejected, but refer to `the report of the auditor and accompanying documents' for the evidence which is the subject of exception, and in some instances for the grounds of objection as well. Such assignments of error can not be considered by this court. A ground of a motion for a new trial, complaining of the admission or rejection of evidence, will not be considered unless it is complete in itself, requiring no reference to other parts of the record to render it intelligible. Herz v. Claflin, 101 Ga. 615 [29 S.E. 33];Shockley v. Morgan, 103 Ga. 156 [29 S.E. 694]. We see no reason why the same rule should not be applied to exceptions to an auditor's report."

In Hudson v. Hudson, 119 Ga. 637 (46 S.E. 874), this court, after referring to the fact that the rule seems to be universal that in this class of cases the exception should be so framed as to relieve the superior court and this court of the burden of going over the entire case, or performing duties which properly belong to master and counsel, quoted from Commander in Chief, 1 Wall. 43 (17 L. ed. 609), as follows: "Parties excepting to a report should state with reasonable precision the grounds of their exceptions in connection with such other particulars as will enable the court to ascertain, without unreasonable examination of the record, what the basis of the exception is. For example, if the exception be that the commissioner received improper and immaterial evidence, the exception should show what the evidence was. If, that he had no evidence to justify his report, it should set forth what evidence he did have." The court had occasion to refer to this subject again shortly thereafter, where the trial court was affirmed for striking certain exceptions of law without going into the abstract question as to whether the auditor's ruling was correct, and in doing so said: "Several of the exceptions assigned as error that the auditor's conclusion is unauthorized by the facts, as will appear by a reference to designated pages of the brief of evidence, in connection with the finding of facts on a given page and line of the auditor's findings of fact. Under this form of an exception it is first of all necessary to find the ruling complained of, then to search through the designated portions of the brief of evidence to discover what was the evidence, and, thus having secured the material, determine whether or not the exception was well taken. There are many cases in the books, and several recently decided by this court, which emphasize the peculiar necessity for requiring exceptions and assignments of error on auditor's reports to be complete in themselves. . . These exceptions ought not to refer the court from one part of the record to another to discover what was ruled, and to other and various parts of the record to search for evidence relating to that particular point, but the exception should be complete in itself. It should state what was the ruling complained of, the evidence on that point, and state of what and wherein the error consisted." Weldon v.Hudson, supra.

In Baxter v. Camp, supra, the same ruling was again laid down, the court citing and following the decision in Weldon v.Hudson, supra. In Armstrong v. American National Bank ofMacon, supra, a ruling to like effect was based on the authority of Hudson v. Hudson, supra, the court again stating the rule: "In view of the complicated character of cases generally referred to auditors, and the length of the resulting record, there are specially strong reasons for requiring the strictest compliance with the provisions of the statute that all exceptions shall clearly and distinctly specify the errors complained of. The exception should contain all facts and rulings necessary to show harmful error. It should not be so incomplete as to force the court to search through the record to find error." See Loyd v.Camp, 172 Ga. 510 (158 S.E. 40), and Robinson v. Reese,175 Ga. 574 (165 S.E. 744), where the rule stated in Hudson v. Hudson, supra, was reiterated. In view of the authorities next above referred to, commencing with Torras v. Raeburn, supra, and ending with Robinson v. Reese, supra, it is difficult to harmonize the expression in some of them, that a reference to the evidence contained in the auditor's report will suffice, with the earlier deliverances of this court (to wit, those inTorras v. Raeburn, Hudson v. Hudson, supra, the first being by six Justices, and the latter by five Justices, one being absent), which have been referred to approvingly and relied on as authority in so many subsequent cases, as hereinbefore pointed out. Regardless, however, as to whether or not an appropriate reference to the auditor's report of the evidence will suffice, we are satisfied that in the instant case the exceptions now under consideration do not meet the requirements. A consideration of the evidence is necessary to determine the correctness of the auditor's ruling. None of the evidence is included or attached as an exhibit, but this statement is made: "the error being, as plaintiffs contend, that it appears upon the face of the report and the facts reported in connection with such ruling;" in another, that "it clearly appears from an exemplified copy of said proceedings introduced in support of the allegations;" in another, that the finding is "wholly unsupported by any fact or circumstance;" and in still another dealing with the finding that the total sum that came into the hands of the guardian was $4018.75, it is said, "the error being, as plaintiffs contend, that his honor the auditor in arriving at the said sum appears to have merely adopted the alleged income appearing on the unapproved returns of the guardian, whereas it was found and appears from the report that the guardian did not make an `accurate exhibit' of the property, and that he made `incomplete returns,' and it further appearing on pages 3 to 27 of the evidence that the guardian did not make true and correct returns, in that he did not therein or elsewhere report or exhibit to the court the following farm produce and property received from share croppers Bracewell and Latimore, to wit, 40 bales of cottonseed, 595 bu. of corn, 150 bales of hay, 1000 bdls. fodder, and one load of watermelons; that the guardian did not by said returns or elsewhere report to the court of ordinary any account sales of large quantities of cotton received by him from the plantation of the ward, showing to whom it was sold, when it was sold or what price he received for it." The pages of the evidence as filed by the auditor, as appears in the record before us, are not given by numbers. The entire record consists of fifty-five numbered pages, which is incorporated in the bill of exceptions. The first page of this evidence is numbered 20, the last page 55. If we look to the bill of exceptions and, commencing where the evidence begins, count until we reach page 20 thereof, and examine the pages immediately following till page 27 has been finished, we then would not know whether we had read that portion of the evidence which the excepting party relies on; for there is no assurance that the person who drafted that part of the bill of exceptions containing the evidence put on each page the subject-matter, no more and no less, which appeared on each of the pages of the brief as reported by the auditor. But if by some such method of examination we could locate the particular pages which we believe the exceptor probably had in mind, we would find on these pages a great mass of evidence that is utterly irrelevant to the issue raised by the particular exception in which reference is made to the pages of the evidence. Even if by an "appropriate reference" contained in the auditor's report of the evidence the rule in question could be complied with, notwithstanding the deliverances of this court in the earlier cases hereinbefore referred to, to the effect that no exception of the character under discussion will be considered unless it is complete in itself, requiring no reference to other parts of the record to render it intelligible, and notwithstanding what was therein said that in this class of cases the exception should be so framed as to relieve the superior court and this court of the burden of going over the whole case, or performing duties which properly belong to the auditor and counsel, and notwithstanding the statement of the rule as laid down in Armstrong v.American National Bank, supra, which statement omits also any reference to the report of the testimony as made by the auditor, we are of the opinion that the exceptions now under consideration contain no "appropriate reference" to the testimony, and that since none of the evidence relied on by plaintiffs in error was incorporated therein or attached thereto as an exhibit, such failure in and of itself afforded a sufficient reason for the action of the judge in overruling it. It is the duty of the court to declare and apply the law, and this includes the law of procedure as well as the substantive law. The rules as to the manner of framing exceptions to the findings of an auditor and what they should contain are not designed as pitfalls to catch the unwary, nor is their primary purpose to lessen the labor of the judges. The larger objective is to provide aids to the more efficient administration of justice. See, as to the necessity for having rules of procedure, how a continual departure therefrom tends to bring chaos into the court, the statement of an accomplished law-writer quoted inDingler v. Cumby, 189 Ga. 182, 185 (5 S.E.2d 753).

For the reasons indicated in this division of the opinion there was no error in overruling exception 10, or in overruling exceptions 2,3,5,6,8, and 9, for the reason that the evidence is necessary to be considered in determining the question sought to be raised by the exceptions, and the testimony is not incorporated in the exceptions or attached thereto as exhibits; nor, as in exception 10, is there even any reference to pages of the auditor's report of the evidence, where it may be found, even if such reference would suffice.

2. The ruling in the second headnote is merely another evidence of the application of the governing rule that exceptions must be complete in themselves, and that parties excepting to a report should state with reasonable precision the grounds of their exceptions in connection with such other particulars as will enable the court to ascertain, without unreasonable examination of the record, what the basis of the exception is .Hudson v. Hudson, Baxter v. Camp, Loyd v. Camp, Robinson v. Reese, supra.

Exception 4 points out, as a reason why the exception is well taken, that, as contended, the guardian had never made any returns to the court of ordinary, as ruled by the auditor on pages 35 and 36 of his report, and that "since it appeared of record in the court of ordinary at the time the said order was granted that the guardian had never made an inventory or accurate exhibit or any exhibit of the assets of the ward's estate as required by law," etc., and "as appeared of record, any act of the said guardian, the said order is, upon the face of the record, fraudulent and void." There is nothing included within this exception of law that furnishes the necessary data for a determination of the question whether there was or not any error. The fourth exception is further defective in that it points out no ruling of law made by the auditor. It recites that the auditor ruled (a) that this is an application for extra compensation, (b) that it was granted by the ordinary, and (c) that "ample reason appears to be behind the request." What error it is upon which exceptors base an exception of law is not stated. There is no specific assignment of error. The exception follows with a recital of certain contentions as to what appears of record, and certain negative statements are made; but what particular ruling it is to which exception is taken is not stated. And the same is subject to the criticism that it does not state with reasonable precision the ground of the exception in connection with such particulars as will enable the court to ascertain, without unreasonable examination of the record, what the basis of the exception is.

The seventh exception is to the ruling of the auditor allowing the guardian credit for $638.10, "the error being, as plaintiffs contend, that it appears upon the face of the report and in said ruling that the said checks were drawn and the disbursements made long after the death of the ward, and the said disbursements were illegal and were an unlawful usurpation of authority, and was done over the protests of the plaintiffs, and the defendants are accountable to the plaintiffs for the said sum of $638.10, as a matter of law." The observations just made as to the fourth exception apply to the seventh. They can not be intelligently considered without an examination of the returns themselves, and of such records in the court of ordinary as the exceptor had in mind when he framed the exception. Nor is the seventh exception sufficiently specific in its assignment of error. Besides this, the exceptions numbered 4 and 7 can not be intelligently considered without an examination of the documents or writing which are therein referred to. For these reasons it was not error to overrule the same.

3. Two attorneys were named among the defendants. They were charged with conspiring with certain other defendants to defraud fraud the estate and of participating with them in its "malversation." The auditor found against the complainants as to the defendant attorneys, acquitting them of any wilful misconduct and of any liability to the complainants. No exception to such finding was taken. Certain other exceptions were filed, all of which were overruled and disallowed by the judge. A decree was entered in conformity with the auditor's conclusion. It contained this sentence: "Other defendants [naming the defendant attorneys] are dismissed." The plaintiffs assign error on so much of the decree as is contained in the quoted words. While this part of the decree, in view of the findings of the auditor, may have been superfluous, its inclusion therein affords no basis for reversal. If erroneous, the correction of the error would not gain any substantial benefit for the plaintiffs, because, under the finding unexpected to, they made out no case against these two defendants. The error, if any there be, was harmless, under this record.

The assignments of error under this record which relate to entering of the decree were without merit.

Judgment affirmed. All the Justices concur.