Bond v. Finley

74 Mo. App. 22 | Mo. Ct. App. | 1898

Bond, J.

— This action is upon an alleged balance of $245 of an account embracing fourteen items of debit and sixteen items of credit. It was begun before a justice, where defendant offered to let judgment go in plaintiff’s favor for $75. This not being accepted, plaintiff had judgment on the trial for $122, from which defendant appealed to the circuit court, where the issues were referred to a referee, for the reason that they involved the “hearing of long mutual accounts” extending over several years. The referee filed a report recommending judgment for plaintiff for $40.85. Both parties excepted to this report. The court sustained the exceptions of plaintiff to certain items of the report and overruled those of defendant, and thereupon gave judgment for plaintiff for $136.50, from which this appeal is prosecuted by defendant.

exception: time. It is insisted by appellant that the trial court erred in sustaining the exceptions of plaintiff to the report of the referee and in making a finding for itself upon the evidence and entering judgment for plaintiff. This position can not be maintained. The record shows that defendant saved no exception to the ruling of the court upon the exceptions filed by plaintiff to the referee’s report. It is true the motion for new trial complains of the rulings upon the exceptions to the report, but that is not enough to bring the question up for review in an appellate court. ■ In order to have this effect the exception should have been interposed at the time the ruling of the court was made, and should have been duly preserved in the record. Wentzville Tobacco Company v. Walker, 123 Mo. 662. Neither is there any force in the position taken by appellant, that the findings of the referee in this case stood upon the same footing as a special verdict.

That rule is only applicable to strictly legal actions and which can only be referred by consent of the parties. Where the nature of the action is such that it may be referred by the court without the consent of the parties (R. S. 1889, sec. 2138) the finding of the referee upon the evidence is only advisory and may be set aside by the court and new findings made by it upon the evidence. Wentzville Tobacco Co. v. Walker, supra, loc. cit. 670. The record in this case shows on its face that the issues referred belong to the class wherein the court might lawfully direct a compulsory reference. It was therefore' entitled to make its own findings upon the evidence reported by the referee. This assignment of error is therefore ruled against appellant. No others being made the judgment herein will be affirmed.

All concur.