40 S.W. 12 | Tex. | 1897
The Court of Civil Appeals for the Fifth Supreme Judicial District has certified to this court the following statement and questions:
"This is a suit on account in which there are items of debit and credit. An auditor was appointed by the court who, after hearing testimony, made his report, and all the items of debit were excepted to. Upon the trial the auditor's report was introduced in evidence by the plaintiff, and no other testimony was introduced by either party as to such debits.
"In view of the conflict in the decisions upon the subject (see Moore v. Waco, c., 28 S.W. Rep., 1033, and authorities cited; Revised Statutes, article 1473; Camden v. Stuart,
"1. Where an auditor's report or a part thereof has been excepted to, and such report is offered in evidence, and no other evidence is offered by either party in regard to the items covered by such exceptions, does the report establish a prima facie case upon which judgment can be rendered?
"2. What effect, if any, should be given to the auditor's report as evidence, when excepted to?"
We understand that the second question, so far as it is applicable to the facts stated, is embraced in the first, and we therefore confine our answer to the first question; to which we reply that the auditor's report, when excepted to, in the absence of any evidence contradicting it, is sufficient to support a judgment rendered in accordance with the facts contained in it.
The weight to be given to the report of an auditor appointed under article 1494, when properly excepted to by either party, is determined by article 1496, Revised Statutes, which is in this language: "The report of the auditor shall be admitted in evidence, but may be contradicted by evidence from either party where exceptions to such report, or of any items thereof, shall have been filed before the trial."
By the terms of this statute the report of an auditor when excepted to *583
is admissible as evidence and, being admissible, is to be considered by the court or jury, but it may be contradicted by evidence offered by either party; that is, the report so made, when excepted to, is prima facie proof of the facts stated in it, and if not contradicted by evidence offered by either party, will support a judgment in accordance therewith. Whitehead v. Perie,
In New Hampshire the subject is regulated by statute and the effect to be given to a report of an auditor when excepted to is stated in the following language: "It shall be given in evidence to the jury, subject to be impeached by evidence offered by either party." This is almost identical with the language of our statute. In a number of cases the Supreme Court of that State has construed the statute, and in Knowlton v. Tilton, cited above, the interpretation placed on it is stated by the court as follows: "The report of an auditor is, by the statute, made evidence to the jury in support of a claim found due in the report. When the plaintiff had introduced that to the jury, it was unnecessary for him to proceed farther in support of his case, although it might be made to appear that the claim found due by the auditor was for labor and services rendered under a special contract, under seal. The statute making the report evidence implies that, in the absence of all conflicting evidence, it is sufficient to establish every fact material to the proof of the claim, and among them if that is material, that of a rescinding, waiver or abandonment of the contract."
In the case of Kempner v. Galveston County,
We think that the cases of Whitehead v. Perie,