Hudson v. Hudson , 119 Ga. 637 ( 1904 )

Lamar, J.

(after stating the foregoing facts.) 1, 2. The demurrers went to the whole bill, and should have been overruled, because certainly in some respects it was sustainable. Lowe v. Burke, 79 Ga. 166. The plaintiffs were entitled to partition, and to a,n accounting for the rents. Even if the allegations that the defendant had bought their interest in the personal property of the deceased' did not authorize them to maintain a suit in their own name, there was no demurrer on the ground that it could only be maintained by an administrator, and it was not erroneous to refuse to dismiss the petition as a whole. There were no special demurrers requiring that any specific allegations or prayer for relief should be stricken.

3, 4. The defendant must admit or deny each paragraph in the petition, or state a reason why he can not do so. Allegations not answered are taken as prima facie true. Civil Code, § 4961. But it is evident that this provision does not apply to amendments offered from time to time during the progress of the trial. Many amendments need not be answered at all. And where they are so material as to require an answer, the defendant is entitled to time in which to make it. Civil Code, § 5068. But by allowing the case to proceed, without answering, or without claiming the time to answer, the defendant is not to be presumed to admit the truth of the allegations thus injected into the case. This right to the plaintiff, and presumption against the defendant, is limited to that answer required to be filed at a fixed time to a petition containing an orderly statement of the plaintiff’s case as a whole. It does not apply to amendments intended to cure defects or supply omissions. This is frequently done by the substitution of one word for another, and the change is often of a character which could not be independently answered even though it might be material. Nor does the statute apply to fuller and more elaborate amendments adding new facts which ought in the first instance to have been included in the petition. Our law is extremely liberal in the right to amend. But the privilege does not have coupled thereto the onerous presumption that everything therein stated is true unless a formal denial is filed by the defendant. The failure, therefore, of the defendant here to deny the facts stated is not to be treated as an admission under the Civil Code, § 4961. It was, however, a statement in reference to the disposition, by consent, of a portion of the res before the court. It did not set up any fact as to the cause of action, but related to that which transpired in the presence of the court, or within its knowledge. It is similar in effect to the suggestion of the death of one of the parties to the record, which unless travversed is universally taken to be true without proof.

5-7. The amendment alleged that, by consent of all parties to the record, land which, was involved in the controversy had been sold for $6,000. The defendant demurred, but did not traverse this allegation. The court, instead of decreeing as to the-land itself, properly decreed what should be done with the money. When the firm as creditor holding this land as security, and John R. Hudson as debtor, agreed to sell 400 acres to Mrs. Hooks for $5,500- — -$1,500 cash and $4,000 in notes, — of which John R. Hudson was to receive the $1,500, the fact that Mrs. Hooks failed to complete the purchase did not make Hudson & Brother liable to John R. Hudson for what he was to have been paid by her. He held his claim against her and retained his equity in the land until that debt was paid. And when the land was subsequently sold by consent of all parties, the court rightly allowed him out of the proceeds an amount equal to his interest therein.

8. The suit was not against the administrator L. N. Hudson, and therefore the witnesses were not incompetent to testify as to communications and transactions with him as an individual. If the case be considered as involving matters which were against W. B. Hudson as surviving partner, they were incompetent to testify as to transactions solely with the deceased partner, affecting partnership liability. But it was far too general to assign as error that the “ auditor erred in ruling that petitioners were competent witnesses to prove transactions and communications with L. N. Hudson, deceased, on the ground that he was dead at the time the testimony was offered.” It was not alleged that the communications were solely with the deceased partner, nor was there any motion to rule out any of the testimony thereafter introduced which may have come within the rule. As against the objection urged, and at the time when the ruling was made, the auditor committed no error.

9, 10. Cases referred to auditors are usually more or less complicated. The evidence is voluminous, and the fact that th'e complaining party is not only allowed to assign error on the decree" generally, but to multiply exceptions by complaining of separate and distinct findings of fact and rulings of law, necessitates the strictest enforcement of all general rules requiring a clear assignment of error. The statute (Civil Code, § 4589) makes this emphatic, and perfectly explicit. So do many decisions. Roberts v. Summers, 47 Ga. 439 (2). 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 of performing duties which properly belong to the master and counsel. Stanton v. Ala. R. R., 2 Woods, 507; Holcomb v. Holcomb, 11 N. J. Eq. 281; Warren v. Lawson, 117 Ala. 339. “ 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. If, that he admitted the evidence of witnesses who were not competent, it should give their names, and specify why they were incompetent, what they swore to, and why their evidence ought to have been rejected.” In re Commander in Chief, 1 Wall. 43.

The plaintiffs in error properly omitted from the record much of the testimony in the auditor’s report, relating, as it did, to matters disconnected with the assignment of errors. In the main the exceptions in this case are admirably arranged; for they can be considered without constant reference to other parts of the record. The ruling complained of is set out, the evidence bearing thereon follows in immediate connection, and the error is clearly and distinctly alleged. All of these we have considered and discussed. But the exceptions as to the bar by the statute of limitations of certain items of the account, as to the admission of the certificate of deposit, as to the rent of the Mims house, and others can not be considered without a re-examination of the entire record in order to determine whether there was error; and if so, what was the materiality of the finding, or how and in what manner and to what extent they affected the result, or why a new trial should be granted therefor. The burden upon the plaintiff here is twofold. He must not only show error, but that it was harmful. And in the case of auditors’ reports, where the exception is not to a verdict, but to independent and isolated facts, it ought to be shown to what extent they have affected the final decree. For suppose an auditor does admit improper evidence, or does make an improper finding of fact; it does not necessarily follow that harm has resulted. McDougald v. Dougherty, 11 Ga. 570 (3).

Judgment affirmed.

All the Justices concur, except Simmons, G. J., absent.