2021 Georgia Code
Title 44 - Property
Chapter 2 - Recordation and Registration of Deeds and Other Instruments
Article 2 - Land Registration
Part 3 - Examiners
§ 44-2-103. Examiner's Powers; Contents, Filing, and Notice of Examiner's Report; Right to Jury Trial, New Trial, and Appeal; Recommitment to Examiner After Trial or Reversal on Appeal

1. At the time and place set for the hearing, the examiner shall, in like manner as other auditors, proceed with similar powers as to the compelling of the attendance of witnesses, the production of books and papers, and adjournment and recessing to hear all lawful evidence submitted. In addition he may make such independent examination of the title as he may deem necessary.
2. Within 15 days after the hearing has been concluded unless for good cause the time is extended by the judge, the examiner shall file with the clerk a report of his conclusions of law and of fact setting forth the state of the title; any liens or encumbrances thereon, by whom held, and the amounts due thereon; the abstract of title to the land; any other information affecting the validity of the title; and a brief or a stenographic report of the evidence taken by him. He shall mail notice of the filing of his report to each of the parties who have appeared in the case. Any of the parties to the proceeding may file exceptions to the conclusions of law or of fact or to the general findings of the examiner within 20 days after such report is filed. The clerk shall thereupon notify the judge that the record is ready for his determination.
3. If the petitioner or any contestant of the petitioner's right shall demand a trial by jury upon any issue of fact arising upon exceptions to the examiner's report, the court shall cause the same to be referred to a jury either at the term of court which may then be in session or at the next term of the court or at any succeeding term of the court to which the case may be continued for good and lawful reasons. It shall be the duty of the judge to expedite the hearing of the case and not to continue it unless for good cause shown or upon the consent of all parties at interest. The issue or issues of fact shall be tried before the jury, in the event jury trial is requested, upon the evidence reported by the examiner except in cases where, under law, evidence other than that reported by an auditor may be submitted to the jury on exceptions to an auditor's report. Furthermore, in cases where the examiner has reported to the court findings of fact based on his personal examination, either party may introduce additional testimony as to such facts, provided that the party will make it appear under oath that he has not been fully heard and given full opportunity to present testimony on the same matter before the examiner. The verdict of the jury upon the questions of fact shall operate to the same extent as in the case of exceptions to an auditor's report in an ordinary civil action.
4. In all matters not otherwise provided for, the procedure upon the examiner's report and the exceptions thereto shall be in accordance with procedure prevailing as to the auditor's reports and exceptions thereto.
5. The right to grant a new trial upon any issue submitted to a jury and the right of appeal shall be as provided for in Code Sections 5-6-37 through 5-6-44, 5-6-48, and 5-6-49.
6. The judge may refer or recommit the record to the examiner in like manner as auditor's reports may be recommitted or he or she may on his or her own motion recommit it to the same or any other examiner for further information and report. When an exception or exceptions to the examiner's report have been sustained by the court or by verdict on the trial of an issue of fact or when the appellate court reverses the judgment of the trial court, it shall not be necessary for the trial court to recommit the case to an examiner, but the judge shall proceed to enter a decree in accordance with the law and the facts as thus established and appearing from the record; provided, however, that if the judge, in his or her discretion, is of the opinion that it is in the interests of truth and justice that a recommitment to an examiner should be made, the judge may, upon the motion of any party or on his or her own motion, order a recommitment of the whole case or any part thereof or for the taking of additional testimony upon any matter which the court deems necessary to the rendition of a true and correct decree.

(Ga. L. 1917, p. 108, § 20; Code 1933, § 60-304; Ga. L. 1943, p. 326, § 1; Ga. L. 1992, p. 6, § 44; Ga. L. 2016, p. 883, § 3-10/HB 927.)

The 2016 amendment, effective January 1, 2017, in subsection (e), deleted "to the Supreme Court" following "right of appeal"; and, in subsection (f), in the first sentence, substituted "he or she may on his or her" for "he may on his", and, in the second sentence, substituted "When" for "Where", substituted "when the appellate court" for "where the Supreme Court", substituted "the judge may" for "he may" and inserted "or her" following "his". See Editor's notes for applicability.

- Ga. L. 2016, p. 883, § 1-1/HB 927, not codified by the General Assembly, provides that: "This Act shall be known and may be cited as the 'Appellate Jurisdiction Reform Act of 2016.'"

Ga. L. 2016, p. 883, § 6-1/HB 927, not codified by the General Assembly, provides, in part, that: "Part III of this Act shall become effective on January 1, 2017, and shall apply to cases in which a notice of appeal or application to appeal is filed on or after such date."

- For survey article on local government law, see 59 Mercer L. Rev. 285 (2007). For article on the 2016 amendment of this Code section, see 33 Georgia St. U. L. Rev. 205 (2016).

JUDICIAL DECISIONS

Constitutionality.

- Provisions of this statute relating to the trial by jury, upon demand, of issues of fact arising upon exceptions to the examiner's report, which is to be taken as prima facie true, and restricting the hearing to the evidence reported by the examiner, except as otherwise provided in this statute, are not unconstitutional limitations of the right of trial by jury. Crowell v. Akin, 152 Ga. 126, 108 S.E. 791, 19 A.L.R. 51 (1921) (see O.C.G.A. § 44-2-103).

This statute is not violative of the due process clauses of the state and federal constitutions, upon the ground that the statute provides for the independent examination of the title by the examiner and for the submission by the examiner of a final report based upon such findings, which shall be taken as prima facie true, such report not being conclusive upon the parties nor binding upon the court until after trial by jury upon exceptions of fact filed thereto. Crowell v. Akin, 152 Ga. 126, 108 S.E. 791, 19 A.L.R. 51 (1921) (see O.C.G.A. § 44-2-103).

- While an action under The Land Registration Act is not a case in equity, but is a purely statutory proceeding, the statute expressly makes the procedure in equity applicable to exceptions to an examiner's report in such case. Bird v. South Ga. Indus. Co., 150 Ga. 420, 104 S.E. 232 (1920); Holton v. Lankford, 189 Ga. 506, 6 S.E.2d 304 (1939).

Procedure on the report of the examiner under the Georgia Land Registration Act is the same as that on the report of an auditor in an equity case. Bird v. South Ga. Indus. Co., 150 Ga. 420, 104 S.E. 232 (1920); McCaw v. Nelson, 168 Ga. 202, 147 S.E. 364 (1929).

- An examiner's report, when not excepted to within 20 days as required by this statute, becomes binding upon all parties to that proceeding and the parties are not allowed to later challenge the report. Miller v. Turner, 209 Ga. 255, 71 S.E.2d 517 (1952) (see O.C.G.A. § 44-2-103).

Sole function of the jury, as expressed in The Land Registration Act, is to pass upon issues of fact raised by exceptions to the examiner's report. Holton v. Lankford, 189 Ga. 506, 6 S.E.2d 304 (1939).

- Party is entitled to have submitted to a jury certain disputed issues of fact found by the examiner upon which the examiner concluded that the other party had acquired prescriptive title and was entitled to have the land registered in that party's name. Allen v. Johns, 235 Ga. 667, 219 S.E.2d 369 (1975).

- Either the applicant or the defendant in a land registration proceeding may insist upon a jury trial upon any material issue of fact arising out of exceptions to the examiner's report. Gordon v. Georgia Kraft Co., 217 Ga. 500, 123 S.E.2d 540 (1962).

- See Crowell v. Akin, 152 Ga. 126, 108 S.E. 791, 19 A.L.R. 51 (1921); Saunders v. Staten, 152 Ga. 142, 108 S.E. 797 (1921).

- If an examination of the record reveals no material issues of fact and further reveals that the finding of the examiner was demanded by the evidence, then it is not error for the court, instead of empaneling a jury and directing a verdict, to render judgment in accordance with the findings of the examiner. Gordon v. Georgia Kraft Co., 217 Ga. 500, 123 S.E.2d 540 (1962).

- Fact that neither party requests a trial by jury does not operate as a waiver of jury trial, except as to such issues of fact as might be raised by exceptions to the examiner's report. Holton v. Lankford, 189 Ga. 506, 6 S.E.2d 304 (1939).

When there has been no express waiver and the parties merely fail to demand a jury trial upon issues specifically designated by the statute, the waiver is therefore only that which may be implied from such inaction, and it should not be extended beyond the plain meaning of the statute. Holton v. Lankford, 189 Ga. 506, 6 S.E.2d 304 (1939).

- Waiver of jury trial authorizes the trial judge to act as jury only to the extent of passing upon the exceptions as a jury would otherwise have done and does not carry consent for the judge to act as trier for the purpose of making new findings of fact. Holton v. Lankford, 189 Ga. 506, 6 S.E.2d 304 (1939).

- Exceptions to an examiner's report must separately classify exceptions of law and exceptions of fact, making each exception clear and distinct, specifying the errors complained of. Bird v. South Ga. Indus. Co., 150 Ga. 420, 104 S.E. 232 (1920).

- Neglect of a party excepting to an examiner's report on matters of fact, or on matters of law dependent for a decision upon the evidence, to set forth, in connection with each exception of law or fact, the evidence necessary to be considered in passing thereon, or to point out the same by appropriate reference, or to attach as exhibits to one's exceptions those portions of the evidence relied on to support the exceptions, is sufficient reason in a land registration proceeding for dismissing or disapproving the exceptions of fact and for overruling or dismissing the exceptions of law. Davis v. Varn Turpentine & Cattle Co., 167 Ga. 690, 146 S.E. 458 (1929); Morris v. James, 216 Ga. 272, 116 S.E.2d 286 (1960).

Remand to examiner lies within the discretion of trial judge, whose decision will not be reversed when appellees fail to show that the trial court has abused this discretion. Bruce v. Rowland Hills Corp., 243 Ga. 278, 253 S.E.2d 709 (1979).

- On sustaining the exceptions to an examiner's report, the case should be referred again to the same or a different examiner for a de novo investigation and report. Holton v. Lankford, 189 Ga. 506, 6 S.E.2d 304 (1939).

- Examiner's brief of the evidence in a title registration proceeding fully complied with O.C.G.A. § 44-2-103(b), and a trial court did not err in adopting the report without first reviewing a transcript; if a stenographic report did exist, the registrant never made timely request that the report be filed or direct the trial court's attention to evidence appearing in the report. A A OK, Ltd. v. City of Atlanta, 280 Ga. 764, 632 S.E.2d 633 (2006).

- See Rock Run Iron Co. v. Heath, 155 Ga. 95, 116 S.E. 590 (1923).

Cited in Smith v. Board of Educ., 166 Ga. 535, 143 S.E. 578 (1928); Reynolds v. Smith, 186 Ga. 838, 199 S.E. 137 (1938); Burgess v. Simmons, 208 Ga. 672, 68 S.E.2d 902 (1952); Simon Wolf Endowment Fund, Inc. v. West, 210 Ga. 172, 78 S.E.2d 420 (1953); City of Marietta v. Glover, 225 Ga. 265, 167 S.E.2d 649 (1969); Smith v. Bruce, 241 Ga. 133, 244 S.E.2d 559 (1978); Smith v. State, 248 Ga. 154, 282 S.E.2d 76 (1981).

RESEARCH REFERENCES

Am. Jur. 2d.

- 66 Am. Jur. 2d, Registration of Land Titles, §§ 2, 10.

- 76 C.J.S., Registration of Land Titles, §§ 8, 14, 15.