Peavy v. McDonald

Turner, J.

1. When by an order of court referring a case to an auditor he is directed to make his report at or before the next term of the coui’t, and, by subsequent orders duly passed, the time within which he is authorized to file his report is limited to a given date, he is without power thereafter to act in the premises, his control over the case having become exhausted under the express terms of- the orders conferring upon him jurisdiction over the same.

Argued March 14, Decided March 30, 1904. Exceptions to auditor’s report. Before Judge Roan. Clayton superior court. May 2, 1903. J. W. Wise and W. L. Watterson, for Peavy. Joseph W. & John D. Humphries, contra.

2. As the office of exceptions to an auditor’s report is to assign reasons why it should not he adopted and made the judgment of the court, the point that the auditor, at the time he filed his report, had lost all control over the case, may, under the liberal practice which obtains in this State, be raised by way of an exception to his report; though the better practice would seem to be to present an independent objection to its consideration by the court, by way of a motion to disregard it, based on the ground that it amounted to a mere nullity and should he treated as such.

3. That counsel for each of the parties may, after the time within which the auditor was authorized to make his report had expired, have requested him to file the same notwithstanding, “as each party was anxious to dispose of the case,” did not have the effect of conferring upon the auditor jurisdiction to do so, nor estop either party from subsequently objecting to the consideration of the report, because not filed in time ; it not being within the power of the parties to waive his want of jurisdiction over the case, and the conduct of counsel not being such as to mislead either party or to deprive • him of any right which he otherwise might have asserted.

Judgment in one case reversed ; writ of error in the other dismissed.

All the justices concur.