*2 joint picket each established at line was MILLER, K. Before WILBUR point private where a from the Fruit road WASHINGTON, and PRETTYMAN Corporation property joined public road. Judges. Circuit events, As the result of certain detailed hereinafter, petitioners charges filed PRETTYMAN, Judge. Circuit unions, against the and the General Counsel petition case is before This us thereupon complaint of the Board issued of an National for review order of the charged, as pertinent, which so far here Board, dismissed Labor Relations engaged had were in and en unions complaint, Counsel issued the General gaging practices within Board, charging un- two unions with and, meaning of Section of8 the Act2 more secondary practices under so-called fair particularly, they engaged had in a provision boycott of the National Labor boycott. secondary petitioners are the Act.1 Relations (4) (A) of the Act reads 8(b) Corporation, engaged in Giorgio Fruit Di follows, pertinent: far as so here as fruits, selling vegetables growing plaint, bers two of borers. housemen this erhood and field shed Union” is Local Giorgio Wine call “Teamsters and its The Farm Union National Fruit review. Four unions full workers, of which National but the 218, National Farm Labor Union. them, wholly name of the union It is the Kern workers, Kern Corporation Teamsters, Chauffeurs, Farm all whom are Company. Helpers County 87” owned we shall call the irrigators, is International granted composed charged are not Farm Labor subsidiary, are in County The full name America, which we relief employed by in the involved in of harvest part the mem- Local of packing against Union, “Farm Broth- Ware- Local agri- com- shall la- Di [*] selling, any transport, or otherwise handle or work on cease any ducer, processor, dealing employer in, (A) forcing “(4) From this “(b) really in two a strike í|í services, * * * doing business with 5¡C ’> handling, It shall be an unfair labor of their >J« or a other or point where * products commodities or to separate parts, transporting, or otherwise requiring employment concerted any employer person on, induce manufacturer, 5jí object or its to cease refusal in the * or other consideration thereof is: ** other one encourage agents— perform * person; engage using, % or to relat- ** pro- any ing Union and the other part laborers and in commercial relat- cultural brevity merely (4) (A) 8(b) shall La For use 1. See. “Act”, citation, without further Act amended Sec. word Relations bor Management to the National Labor to refer Rela Relations amended tions Act the Labor Stat. U.S.C.A. § Management Act, 1947, (4) (A). 158(b) Relations seq., 29 136 et Stat. seq. U.S.C.A. et 6áá boycott would treat Union 87. We shall Teamsters the stat- prohibitions of not fall within the
way. ute. Farm Union. *3 strike, the during occasions On several the intrica- the into argument But leads followed Farm Union
members the despite the legislative meaning cies of from wine produce or cars of truckloads of say defin- used. that in words Petitioners of the plants to the Giorgio the Di property Congress organization” the term “labor ing picket purchasers there established and “employees” in did not use word the de- purchasers the -of Employees lines. sense, a generic sense in defined it but used picket these lines. clined to cross employed. meaning persons all who are whether question the did not reach in support their contention They find for secondary boy- activities constituted.a these objec- propositions: prime (1) two ’ apply did not It the statute cott. held that secondary Congress enacting in tive of the the Union. boycott provision protection the was point upon this consideration first farmers; Supreme Court (2) statutory lan- quite simple, a matter of Phelps Dodge Corp. in held v. statute, noted from as will be guage. The “employee” Board3 Relations unfair an quotation, relates to the above pro- not used in its defined sense in all was organization or labor “a of the statute. visions is, only agents”. it .That powerful argument Petitioners have applies are the statute practices which sec- their contention that in enacting organization or practices “a labor such ondary boycott provision Congress con- agents”. They plight cerned farmers. sup- opening statements in refer the two Act 2 of the contains port floor of among other bill when reached provides, It definitions. il- the House.4 Both those things: statements any organization of clude cultural any employee, “(5) The term “(3) “Sec. When used [*] [*] 2. laborer, individual [*] [*] term * * [*] [*] ‘labor * * ‘employee’ shall include participate employed as an * organization’ H [*] *. kind . % [*] shall Act— * * * * not in- means sH [*] * agri- jured tory ment from of -a damages. The section that view. That section lustrated provisions Senate farmers. secondary Relations after the bill had been Section 303 his business Committee, Moreover, referring necessity Act, 1947,5 boycott of the and the property by gives person for the seems to damages right inserted in legislative supplemental proposed Manage- reported support sue for caused reason his- in- report proposed em- amendment Thus, language according predicament phasized the farmer.6 participate in Act, “employees” an must proposed The amendment was first Sena- a labor if it is to be deemed organization Ball, and explaining tor the Senate meaning within “ he said: I floor said be- statute, are As agricultural fore, producers farm small businesses statutory term “em- within the included and their are main victims Hence, far words of the so ployees”. strikes, secondary boycotts, jurisdictional concerned, be- are statute * * * It, boycotts. organizational composed exclusively agricultural persons rights and their that we laborers, are with- is not 7 protect.” statute, trying to and so 845, Sen.Rep.No.105, Cong., 6. 80th 85 1st Sess. 3. 313 U.S. (1947). L.Ed. 1271. Cong.Rec. (1947). Cong.Rec. 3424, (1947). 7. 4. 93 158, 29 U.S.C.A. Stat. They Congress de- show that concerned been having The Ball Amendment than provi- with of unions other objection the activities feated because of workers, relief, consisting Taft those Senator injunctive sions latter specifically consider ob- did not in which the offered amendment unques- regard. group As in this The statute provisions were omitted. jectionable protects Senate, tionably farmers amend- presented thus to- organizations team- in which would have declared unlawful ment etc., secondary sters, “any person” engage in classified workers, participate. But boycott. debate During the question phrase now before us. *4 objection that an was made liability impose “any person” would brings petitioners’ reliance This us upon individuals. Senator Taft therefore Phelps Corp. Labor upon v. National Dodge proposal “labor amended the to substitute Board, supra. think that We Relations organization” person. He said: problem opinion now determine does “ * * * I change. shall make one power That case concerned before us. ‘person’ changed 2 will be line word Labor order reinstatement of Board to read ‘labor so that suits organization,’ that strikers it had been determined where only brought may be reemploymentbecause union were denied of against against organizations and not Act 10(c) pro activities. Section individuals, ef-' might have which been Board, upon proper findings, that feet, vides by stated from New Senator requiring “reinstatement By issue order change may York.”8 Section be- this 303 177,61 pertinent phraseology employees”. identical in came U.S. S.Ct. [313 849.] Act, there 8(b), certainly with Section no from which we 2(3) change indication that intend- part, quoted provides already have * * * deprive any portion ed to farmers ‘employee’ in shall “The term protection against boycotts. secondary any whose work ceased clude individual has Thus, petitioners strong support have with, consequence of, or in connection as a respect. their contention in At the or dispute any because current time, it pointed that, must be same out practice, and who has any unfair labor boycotts effect of farm- any regular obtained other and sub Congress, discussed in ers was the refer- equivalent employment stantially ences were to the caused difficulties in the There some doubt evidence teamsters, etc., activities of longshoremen, some of involved whether the workers not to possible activities of “substantially obtained or had not had workers. Taft Senator “The Thus said: equivalent employment”. The contention is that trouble man up to the drives made that workers who had obtained delivery point, and because the teamsters’ regular substantially equivalent other says union he not have does a teamster’s could reinstated employment not be card, then the plant, the un- they “employees” by Board, since loaders, or longshoremen, or whatever statutory Court definition. be, may will not unload his truck. That “employees” word referred is what we are to reach trying in this case.”9 provision and to the reinstatement In this connection reference should also be “employee”. It “The made to the definition said: hearings before the House perfect. But this is bit of Committees, syllogism is Senate in which the difficulties logic from which meaning of farmers with verbal were discussed.10 Cong.Rec. seq. sect., seq., (1947); (1947). 8. 1890 et 1912 et et Hearings before Senate Committee on Cong.Rec. (1947). on Public Welfare Labor Re- Hearings Cong., Program, before 80th 1st Sess. House lations on Committee seq. seq., seq., Education and Labor on 1636 et et 494 et Amendments (1947). to the National Labor Relations 80th Cong., 719, 724, 1803, 1st Sess.
6á6
'
things
evaporated.”11
points
has
pointed
others',
It
out
and an undefined
at
that iri the
provision
reinstatement
“the ref- we would
be
simply
rewriting the' statute.
‘employees,’
erence is to
unqualified and un-
It
legislative history,
seems clear from the
differentiated.” Then it
“To cir-
said:
says,
Congress
meant to
as.
class,
general
‘employees,’
.cumscribe the
pro
exclude
from the
must find authority
policy
either in the
Report
visions of the Act. The Senate
specific
pro-
the Act or in
delimiting
some
the bill
original
became the
pointed
gen-
vision of it.” The
Court
Act,12 says
ad
Relations
“For
erality
phrase
opening
the defini-
reasons,
ministrative
the committee deemed
“employee”,
reads:
“The
it wise not to
agri
include under the bill
‘employee’
term
any employee”.
shall include
laborers, persons
cultural
in domestic serv
subsequent
Court held
clause
any family
home,
ice
person
or
in his
“who
not obtained
other regular
has
parent
individual
by his
substantially equivalent employment”
spouse.”
supports
The Board also
its view
was not intended to be destructive
analogy
to the exclusion of railroad
broad definition with which the section be-
*5
workers from the
“employees”.
definition of
gins. But it.does not seem to
that the
us
Act,
Section
of
2(3)
which we have
process
applies
same
of reasoning
to the
quoted
part above, provides
that “The
problem
place,
before
In
now
the first
us.
* * *
‘employee’
term
shall not
in
clause,
seems to us
statutory
* * *
clude
employed
individual
definition,
“but shall not include
indi-
employer
an
subject
Railway
to the
vidual
agricultural
as an
laborer”
Labor Act
provision
That
“specific
provision”.
delimiting
is a
Such a
1947,
inserted in
Report
and the Senate
provision,
indicated,
“cir-
the Court
does
exemption
that bill stated: “The
of
class, ‘employees’
general
cumscribe the
employers subject
to the Rail
Moreover,
problem
para-
our
relates to two
way Labor Act
perfectly
is 'to make it
clear
graphs
statute,
in the same section of the
providing
that in
for unfair labor
remedies
dealing
to two different sections
with
practices of
agents
and their
unions
it was
topics. Paragraph (3)
different
of Section
not intended to
employees.”
include such
“employee”,
para-
the term
defines
graph
(5)
the same section defines the
if,
The Board reasons that
in order to
organization”,
term “labor
using the word
perfectly
make it
clear that the remedies
“employees”.
In that situation there is
practices
apply
for unfair labor
did
to
no.t
questions
little or no room to examine
railway employees, Congress excluded such
policy,
pertinent
which were
to
con-
statutory
from the
definition of
sideration
Court of
in-
“employee”,
the term
it follows
that
scope
tended
of an entire
meaning
agricultural
exclusion of
from the
laborers
(Section
relating
section of the Act
10),
statutory
“employee”
definition of
was in-
prevention
to the
unfair
practices
labor
short,
to have the
tended
same result.
In
including
major part
important
an
as
says
Congress
the Board
devised the
power
policy
and controversial
to
to the
statutory
express purpose
for the
definitions
order, the reinstatement of
em-
striking
scope
delimiting
of the Act.
ployees.
questions
policy might
Similar
attempt
arise if we were to
to derive the
Act,
Section
from
8(b)
which we
term
meaning
organization”
“labor
quoted
part,
have
and which makes
appears
8(b),
in Section
but
it seems
illegal
practice
an unfair labor
of a labor
depart
us that if we
should
statu- organization,
merely
the clause
includes
tory
appears
definition of
term it
relating
but contains
'provisions
the vital
8(a)
paragraphs dealing
practices
of Section
with other
six
giving
8(b),
paragraphs
it a
or acts. These other
meaning
defined
at some
do not.
Sen.Rep.No.
Supra
105,
Cong.,
11.
at 313 U.S.
80th
Sess.
1st
(1947).
essentially legislative problem. Con constitution of undoubtedly gress concerned the Union that the basic unit in the or shows boycotts place plight ganization local. Each which local has its farmers; effectively protected and it farm own own offices executive commit supreme governing body which ers from the sort it then tee. The of the mind, boycotts by teamsters, composed had is a unload National convention of dele ers, time, by At same gates etc. seems in elected fees Initiation locals. Congress disputably by local, clear that are in and dues collected portions designated include within either to the benefits such are tend collections- organiza the Act to restrictions forwarded the National. locals composed exclusively bargaining, tions enter into collective and con nothing negotiated representatives to laborers. There is tell us wheth tracts er, problem Congress if had noted the of are submitted the “vote member secondary boycotts against ship and, farmers or- affected contract” when
approved, signed by commerce; so, they say, The of are locals. al- interstate X, provides (Article though Congress general constitution Section 3) did not intend the dispute employer provisions that when a with an apply agri- arises of the statute to all course, must exhausted the cultural ordinary be it did resources local; impos- prohibitive local provisions when the finds intend.that any person sible to differences local officers apply settle statute whose should National, activity notify president shall might of the commerce; obstruct there- representative applies shall persons, who send National fore the Act to all includ- n settlement; workers, seek a if he is unable who have ceased .local, settle the matter a work meeting engaged and are obstruc- activities portion local, the involved shall be tive repre- argument commerce. The and, supportable called if of the members sents a two-thirds view which would be strike, affected legislative vote to the members are valid policy as a valid if work, stop up picket incorporated statute, authorized set ain but we do not find lines, necessary and take other history legislative action statute or in its call public attention of to the issues policy that it indications which provisions spell involved. All those out motivated Congress when the statute was responsibility basic part on the of the local enacted. The essence of the construction position rather urged a subordinate than while at work these laborers —that agency delegated by The are not National. but when not at work presence representa- of the two National are contradictory too —is assisting tives adopted the local Farm Union terms to compel- be without some strike was not sufficient ling meaning. evidence of that For tous agent constitute the local an present write that Na- view into the would law If, presented, tional. on the evidence here be to major import add something of to be already held this local was the cannot find there. agent National, it would be difficult light In the of all the foregoing con- imagine local member of the National siderations, we conclude that the order agent. would not be Thus *7 respect the in Board to the Farm Union described, the considerations which we have should be affirmed. We think that its and which lead us~to conclusion that reasoning and respect conclusions in to organizations composedexclusively agri- of meaning statute, of the itas relates to cultural workers are not included the agricultural laborers, were correct. Act, largely would be agree vitiated. We Teamsters 87. point. the Board on this problem The as to 87 wholly Teamsters is different from argument relating One further to the Farm submitted Union. amici curiae The activities should of the 2(3) be noted. Section Teamsters Act, were to the “employee”,provides confined defining entrances to the Di Giorgio property. There, that the term shall “any include as we individual have al- said, whose work consequence ready has ceased as a Teamsters 87 and the Farm Union had dispute” joint picket current labor but established line. “any shall not include belonging When trucks employed individual trucking various as up concerns picket laborer”. The drove contention line with provisions goods produce, they that those mean were that while .the and halted pickets were persuade strikers as endeavored to them not they not included to cross the w;ere em line. The picketing was en- ployees Act, under peaceable. but they tirely that when In some instances team- ceased work as the result of sters who picket the labor nevertheless crossed the dispute they placed subjected line themselves within the were to disciplinary pro- terms Act. This ceedings somewhat in their contra union. say Petitioners dictory construction basis, finds solid that these amici activities were, Teamsters 87 say, in the intent of intent, question, Act. beyond any That purpose for the say, prevent they was to employers inducing obstruction other the Farm decision favor of the Board’s goods, with transporting from refrain My reasons are these: employers to cease Union. forcing those object of Giorgio, of Di products transporting the By the of the it is an unfair terms clearly violative thus, say, were they organization or for a labor is, it Teamsters the statute. boycotts. agents secondary engage subject to organization agreed, Union, agent acting Farm prescriptions of the Act. National Farm is a within the provisions says that the The Board boycotts. statute, engaged (4) (A)) relate 8(b) statute (Section of the Farm guilty therefore Union was apply only do not practices charged against unfair labor place of their at the pickets activities by the General Counsel of the Labor Board. using the employment where are own statements, foregoing To test right let us strike picket to enforce line first see what picket Union did. The employer. against Such their own majority opinion correctly “On activity in states that activity primary is called says during strike, several mem- occasions law. The Board language of labor bers the Farm Union truck- followed of Teamsters 87 activities produce loads of ob maintaining wine cars solely toward directed Giorgio plants Di property picket primary line estab servance purchasers picket Giorgio, and there established of Di premises lished at Employees lines. against purchasers de- the ban not fall thus do within picket recognized clined to cross these activity. lines.” court secondary This pri between the distinction and sustained clearly Such activities constituted sec- Bldg, in Denver action mary boycotts. ondary National Labor Relations Tr. and Const. Council v. Building v. Denver & Const. Trades was not dis That distinction Rel. Bd.14 Council, 1951, 341 U.S. opin in its turbed Court L.Ed. 1284. guilty, Farm Union of this court reversing ion the decision then, unless, practices of unfair labor when recog case,15 contrary was on the it established such it was nei- in the International Rice and affirmed nized ther a Milling Company and in Court’s case sense, acting agent type nor for that in the Inter reference the Denver case organization. of Electrical Workers Brotherhood national The Labor Board decided distinguished, two are thus case.17 As the *8 Union, composed being exclusively of agree Board that activities with the laborers, was not a labor or- pri were a of Teamsters 87 in this case ganization within the stat- mary by not activity and forbidden think, I for the ute. reasons advanced in statute. argument by petitioner and amici curiae Board be and is order of the should —which are summarized in majority affirmed. opinion the Farm Union should be —that regarded type as of union to which the MILLER, applies. Judge Act Circuit WILBUR K. part concurring part).
(dissenting may, my Be that however, as it is view portion agent from that of the ma- that the Farm Union acted as I dissent undoubtedly Labor opinion upholds the what was jority which Milling U.S.App.D.C. 293, Co., 1950, Inc., 1951, F.2d ternational Rice 14. 186 87 665, 961, 341 U.S. 71 S.Ct. 95 L.Ed. Relations Board v. 15. National Labor Building Trades 17. International Brotherhood of & Construction Electrical Denver Council, Workers, 501, 943, 1951, 675, F. U.S. 71 S.Ct. Local A. of L. Na- 341 v. Board, 1951, tional Labor Relations 341 L.Ed. 1284. 95 954, 694, 95 U.S. L.Ed. 1299. In- Labor Relations Board 16. National v. 650 Farm if the to the factual situation see boycotts, when 'it established law, acting was, as in fact and in Union engaged in unfair that therefore parent establishing agent its Farm practices. The National noted secondary boycott. at It should be Union is
Union, the Farm of which says authoriza the outset that statute organization under “local,” a labor- is con not to be ratification are It term. of that definition ascertaining agency whether trolling in exclusively of composed not - 152(13).2 29 U.S.C. itself exists. Indeed, § laborers. Farm National expressly majority has held I go no further than the need organization. to be such Labor Union opinion a statement of facts find 1, N.L.R.B. Company, 82 Packing Barr clearly agency flows. of the local “ * * * boils question before us (1949). So 9 quote I A western from it: held, correctly whether the Board down National, representative a member law, local -that the union as a matter board, organize helped of its executive parent estab acting agent for its organizer and an boycotts. lishing secondary to the area to the National was sent help the Farm Union run its strike.” held-the local was Labor Board n agent role 'of “because 'acting in the organized newly Union The Farm No other basis interest.” acted in its own recognized body had not been That given. amounts holding' for the Giorgio, employer of all Di of its a-legal saying, proposition, purpose strike was members. The principal’s its furtherance of agent’s act in recognition. force Establishment principal purposes cannot be act part was a of the strike simultaneously to further some serves if it designed to 'activity and was therefore agent. mere purpose of the .persona) Tbe recognition. Organizing a local effect ;is of, enough proposition statetrient recog- is rather futile it is union unless ,to refute-dt, authority available to members, employer of its ánd nized Restate that the law is -otherwise. show very in a real sense 236, (b); Hooper- ment, Agency comment complete until that goal is reached. Cir., Bunn, 1947, 161 Bureau v. Holmes purpose What was the National . Levy, 102; Battery Co. v. National F.2d sending Union in one of its officers to the 33, Cir., 1942, 126 F.2d certiorari denied was, say, majority It the . .scene? 1294, L.Ed. S.Ct. U.S. Obviously help organize Union. 1767; Slavens, Cir., F.2d 1935,78 v. Thomas help recognition part it attain was a state Moreover, Labor Board’s 14 4.1 purpose. Why .of quoted refuted one of above is ment organizing Union desire to aid in the local rulings." itself has prior The Board own , recognition for and in it? There obtaining parent activity to a unlawful attributed answer:, can be but one because it wanted engaged in that its local because membership increase own purpose common to activity' to achieve expand its own influence California *9 say, has That to the Board both. farm labor field. in this ruling tó its recognized, contrary *,“ * * organizer case, may by local well that strike action [A]n parent help sent to the area to equally in the interest of the" 'the National was be ' strike”, Longshoremen’s say run and 'the Farm Union its the International union. 1487, majority. Why the National Union N.L.R.B. do 79 Warehousemen’s purpose complete was Because its to (1948). that? 1514 help- organization local state- thé new the Labor -Board’s erroneous With recognition. Why principle way, ing to attain was an out of turn it ment I Battery Hooper-Holmes, Transfer v. Lumbermens Mut. National Park Co. 1. The Casualty Co., 1944, U.S.App.D.C. 48, and Thomas with master cases dealt relation, principle 142 F.2d and servant but agency relation' same. Cf. in the is the 152(13). § 2. 29 U.S.C.A. The Labor Board process of also found Teamsters “organizer” Because sent? guilty practices, al- on, of unfair labor and the not going still was complete be though held that union to necessary to thought strike statutory recog- within the definition. Giorgio Di to process forcing and Labor Board said Teamsters’ activities the strike new local. Thus nize the steps primary were so were within reach- and § attendant opinion 8(b)(4) majority Farm Act. The the National objective of decision, affirms the in this circumstances Board In Labor Union. these and hereinafter acting I concur for reason say local was idle to seems given. was the agent There for the National. to organizer help the Union run “to “primary” terms The Act does not use the assisting principal was its strike.” The plain “secondary” provides in terms agent. its practice for that it shall be an unfair opinion majority face In of all this the in, “(4) engage or to induce “ * ** says, nothing The Board found any employer encourage the record to indicate that * * * engage concerted re- acting .agent Union was as an employment fusal * the course of their the stat- National within * * * * * any goods, transport ute”, articles, materials, or or to commodities adds, agree Board with the on “We object perform services, where any point.” (A) forcing thereof is: or requiring My * * agreement with the Board brothers’ employer business doing to cease upon analysis their the National is based person (29 other constitution, from Union’s 158(b) ).3 U.S.C. § “ * * * following draw the conclusion: encouraged Teamsters 87 induced and spell provisions basic re- All those out trucking certain four con- sponsibility part local rather on the transport goods cerns refuse position agency than subordinate perform em- service delegated by the National.” ployment, object being thereof force quoted just require The statement from the ma- those trucking concerns opinion is, view, my Giorgio. jority a restate- cease business with doing Di ment Labor Board’s erroneous con- only thing that saves Teamsters acting Farm Union that clusion being guilty of a National agent for the “because acted presence is the of the word The fact that own interest.” the local its 8(b) “concerted” in the second line of (4). and carry initiate on a strike union could perfectly The union’s conduct fits into the responsibility” in own “basic order statutory language except may that. it be purpose in which the National to achieve a transport doubted whether refusal to interest, prevent no does not the con- had goods Giorgio, to Di Teamsters clusion, inevitable, which I think is encouraged, induced was a “concerted” only Union the Farm acted not here speaks. refusal of which the statute This well, parent but for union as itself is the distinction which the sought one in which result Court relied in National Labor Relations deeply Union was interested. Co., v. International Rice Milling 665, I 961, 962, these reasons think the facts For U.S. 95 L. compel support case the conclusion ¡holding Ed. *10 agent for the pickets Union acted as not violate 8(b) (4) § “ setting up In and was the course when of their prac- guilty agents sought picketing, influence, therefore charged against language' which were it. the statute tices ‘en- 158(b) (4). § 29 U.S.C.A. couraged,’ charge men in truck of a two refuse, in a neutral customer of mill to go employment,
the mill goods.” for order Being
. bound this construction
8(b) (4), portion I concur in that
majority opinion which affirms the Labor
Board’s in favor of Teamsters 87. finding
GILMORE v. HINMAN.
No. 10849. Appeals United States Court of McKenzie, Washington, Mr. T. Emmett Circuit. District of Columbia C., appellant. D. for Argued May 25, 1951. C., Ralph Cusick, Washington, Mr.- A. D. appellees. 21, 1951. Decided June PRETTYMAN Before and WASHING- TON, LEDERLE, Dis- Judges, Circuit Judge, trict by designation. sitting PER CURIAM.
Appellees brought a civil action to set conveyance Appel- real estate. aside cross-complaint lant filed for services expended upon the rendered and for sums property. with- After trial before the court jury, judge findings of fact out a made law and referred the conclusions of re- matter to the Auditor of the court port parties. between the the account stating hearings held made a re- The Auditor port, parties excepted. to which all exceptions, court heard the modified report, and then ratified and confirmed it as May judgment Final modified. was entered appeal per- An was noted but not fected, and so dismissed. 11, 1950,appellant On filed in the October a motion to District Court the ref- revoke the Auditor and erence to set aside the denied, ap- judgment. motion was appealed pellant ground that the trial authority lacked to make the court refer- Auditor. ence to the We think action the trial making proper, court reference was