
    Siler Mill Company, Plaintiff in Error, v. Freeman Tatro, et al., Defendants in Error.
    
    Opinion Filed December 3, 1914.
    A referee will not be held in error for granting a new trial upon a proper ground, even though such ground may not affect the party making the motion for new trial.
    Writ of Error to Circuit Court for DéSoto County; A. F. Odlin, Referee.
    
      Judgment affirmed.
    
      Leibner & Leitner, for Plaintiff in Error.
    
      Treadwell & Treadwell, for Defendants in Error.
   Whitfield, J.

An action was brought by the Siler Mill Company, a corporation against' Freeman Tatro on a foreign judgment for $11,738.50 with attachment and also garnishment proceedings against Roberts Brothers partners and the State Bank of Zolfo to subject the proceeds of a note to the plaintiff’s demand. Notice of the attachment proceeding appears to have been served on Freeman Tatro in British Columbia.

An affidavit was filed by Jennie A. Tatro, claiming ownership of the note in the hands of the garnishees. The cause was referred to a referee for trial and determination. In his findings the referee states that “it is * * conceded that Freeman Tatro is indebted to the plaintiff Siler Mill Company, in the sum of $11,738.50 with interest, &c.” The judgment is that the Siler Mill Company recover from Freeman Tatro the sum of $13,199.93, the judgment “to be a lien upon no property except such as has been the subject of attachment and garnishment in this action, said Freeman Tatro not having appeared in this action and not having been personally served with process within the State of Florida.” The referee also, found that the attached and garnisheed property belonged to the defendant Freeman Tatro and not to Jennie A. Tatro the claimant; and adjudged that the proceeds of the note be paid to the plaintiff Siler Mill Company and be credited on the judgment against the defendant.

The claimant moved for a new trial on grounds that the findings are contrary to the law and to the evidence, that tlie referee erred in admitting and in rejecting evidence affecting the claimant, and also “because the findings of the referee that it is conceded "that Freeman Tatro was indebted to the Siler Mill Company in the sum of $11,-738.50, with interest,” etc., “is contrary to the evidence * * * and has no basis” in the evidence or in admission or stipulations in the cause. The refereee granted the motion for new trial because he “committed error in entering judgment herein upon the evidence of the foreign judgment as submitted.” The plaintiff took writ of error.

The ground on which the new trial was granted may not affect the claimant but the referee would have been justified in sua sponte granting the new trial on such ground, and the new trial granted in effect vacates the entire judgment of the referee. As the indebtedness of the defendant was not proven and the order granting the new trial was proper, it is affirmed.

Shackleford, C. J., and Taylor, Cockrell and Hocker, J. J., concur.  