44 Colo. 388 | Colo. | 1908
delivered the opinion of the court:
This is an action for an accounting by one partner against another. The cause was referred by the court to a referee for finding of the issues both of law and fact. The referee reported findings for plaintiff and recommended judgment in his favor. The report was approved by the court and judgment went accordingly. The defendant’s motion for a new trial was overruled, and from the final judgment he is here with his appeal.
1. In the district court of the second judicial district, comprising the county of Denver, there are five divisions, each of which is presided over by a single judge. This action was pending in division 3, presided over by Judge Palmer. The order of reference was made by Judge Mullins, presiding in
2. Defendant’s chief objection seems to'be that the report of the referee is fatally defective in that it does not contain any findings of fact1 at all, and that the alleged, or supposed, findings of fact are blended with conclusions of law. Section 212 of the civil code, under which the reference was had, provides that the report of the referee shall state “the findings of fact and conclusions of law separately and in a clear and intelligible manner.” The referee’s report in this particular is not a model, and we are not prepared to say that it is free from the criticisms made by defendant’s counsel. . But it does not necessarily follow that defendant is entitled to a reversal because of a defective report. Section 212, supra, further provides that upon the filing of the referee’s report with the clerk “judgment shall be entered thereon in the same manner as if the action had been tried by the court, unless objected to by either party by filing a motion for a new trial,” as provided in section 214; which section says that the
In pursuance of these requirements defendant, within the proper time after approval of the report, filed his. motion for a new trial, and the objection to the report then made, and which he renews here, is the one set forth as the first ground of the motion for new trial in the following language: -
“That said referee’s findings and report are not in accordance with said order of court appointing the referee in this ease, and that his findings and report are against the order of said court, and not in compliance with the order appointing the referee.”
The first assignment of errors, the' only one which by any possibility can be construed as' covering this objection, reads:
“The court erred in.overruling defendant’s motion for a new trial on the grounds and for the reasons therein stated.”
Assuming then that, by adoption, the first ground of the motion for a new trial is defendant’s first assignment of error, we are clear that under it he is not in a position to be heard upon the particular objection we are asked to pass upon.
In section 217 of the Code are enumerated the causes for which a new trial may be granted. The first is “irregularity in the proceedings of the court, referee or jury, * * * or any order of the court or referee * * * by which either party was prevented from having a fair trial.” Under this comes defendant’s objection. The first ground for a new trial specified in the motion. is wholly insufficient.
Whether that holding is applicable under our code we are not required to say, for we are clearly of opinion that by his failure, both before the referee and the district court, to call attention to the particular defect now complained of, defendant has waived his right to press the point here.
3. This action was instituted in the county court and a reference was had there, the referee finding the facts and the law in favor of plaintiff, and his report was approved by the county court and judgment went for plaintiff. Upon the hearing before the referee on the appeal pending in the district court, this officer■ permitted plaintiff, over defendant’s objection, to introduce in evidence the transcribed testimony of witnesses who testified before the referee in the county court. The ruling was based upon the fact that the witnesses in question had departed from this state and were living outside thereof in a sister state. The only objection which seems to be seriously urged is that the showing of the nonresidence of the witnesses was inadequate. The showing was clearly sufficient.
5. Defendant says’that the referee did not make a finding as to all the issues of fact raised by the pleadings. Tt seems that the complaint charges, among other things, that defendant fraudulently and wrongfully attempted to deceive plaintiff and conceal from him $400, or thereabouts, of the profits, and convert the same to his own use. We do not find that the record supports this contention. As we read it, the referee was' of opinion that the evidence was not sufficiently clear and preponderating to warrant a finding in favor of plaintiff on this issue. This would seem to be equivalent to a finding against plaintiff. But if it be true, as defendant contends, that there was nt> finding at all, plaintiff might complain; but, since the judgment as rendered against him did not include any award under this issue, and as he claimed nothing affirmatively thereunder, defendant is not hurt by such omission.
Another objection also strenuously urged is to the ruling of the court permitting plaintiff .to introduce a stenographer’s report of certain portions of the testimony of defendant taken before the referee in the county court, for the purpose of contradicting and impeaching defendant Alexander upon the second hearing. It is somewhat difficult to determine just what the record discloses with reference to these two objections. From a technical standpoint it might be difficult to sustain these rulings of the court. We shall not, however, follow counsel in their •elaborate and redundant arguments in support of their respective contentions, or examine or comment upon the vast number of cases which they cite in their support. We observe, however, that Alexander was a party to.the action, and the same strictness required in impeaching a mere witness does not in all respects obtain where the witness is also a party to the action, and that, if the evidence admitted is improper for impeachment purposes, it might be competent as responsive to the main issue of fact under consideration.—Buddee v. Spangler, 12 Colo. 216-223. We do not, however, lay any stress upon these observations. _ If it be assumed that the rul
Considering the entire record, we are of opinion that no error prejudicial to defendant was committed by the trial court; its judgment is therefore affirmed.
Affirmed.
Mr. Justice Gabbbrt and Mr; Justice Bailey concur.