43 Iowa 194 | Iowa | 1876
I. At the time of the filing of the report of the referee, May 24th, 1874, Wright was supposed to be solvent. Mellinger & Co., and -Cottrell & Babcock were satisfied with a judgment against him. The report of the referee exonerated Edwards & Beardsley from liability. The only party, therefore, who took exceptions before the referee, to his report, was Wright. Before judgment was rendered upon the report, Wright filed a motion to suspend proceedings against him for the reason that he had been adjudged a bankrupt, since the filing of the referee’s report. Thereupon Cottrell & Babcock, and Mellinger & Co., filed exceptions to that part of conclusion of law number five, which holds that the sale by Wright to Edwards & Beardsley should stand. Appellants now insist the court below can review the action of the referee only upon exceptions taken before and signed by him; and that, in acting upon the report of a referee, the power of the Circuit or District Court is appellate. In support of this position reference is made to the Code, sections 2819, 2820, 2821, 2822, 2823, 2830 and 2831.
The purpose of this last section is to preserve and present any objection to rulings made during the progress of the trial, which otherwise would not appear of record, such as the admission or rejection of testimony and the like.
We cannot believe the intention to have been to deny a party the right to have a review of the conclusions of law by the referee, or of the correctness of the facts found by him, unless exception thereto is taken before the referee before the filing of the report. Such a course W'ould, in practice, prove very inconvenient, if not altogether impracticable. When all the evidence is submitted to a referee he usually takes time for the examination of it, and the preparation of his report.
When the report is prepared it is filed in court without being submitted to the parties, and without giving them opportunity to except to the conclusions of fact or of law.
The referee stands in the place of the court. His report on the facts and conclusions of law stands as the finding of the court, and they may be excepted to and reviewed in like manner. That is, as we understand it, the referee is simply substituted for the court, for the determination of the questions of fact and of law. When the report of the referee is filed, it stands in the same position and has the same effect as would a like finding of the facts and the law by the court.
The party aggrieved thereby may file his exceptions, and may call upon the court to review or reconsider the finding, upon questions of law, and upon questions of fact, if the evidence has properly been preserved, and from the ruling of the court upon these exceptions he may have his appeal.
In that case, upon the coming in of the report of the referee, the defendants excepted to it, and moved to set it aside. It was held that the exception to the rep&rt, on the ground that it was not sustained by the evidence, was properly overruled, because it did not appear that all the evidence had been certified to the District Court with the report. No suggestion was made that such objection could not be made for the first time after the filing of the report.
In Morris v. Hudson, 8 New York, 204, a construction was adopted which seems to be at variance with the doctrine of this opinion. The question is purely one of practice, and we are satisfied that the foregoing view is the better one.
II. The conclusion of law that, when the press was shipped under the written order, the sale was completed, and the title vested in the Iowa Journal Company, without conditions, is a proper deduction from the facts found by the referee.
The record does not purport to contain all the testimony, and it is quite apparent that, in fact, it contains but a small portion of it. We cannot, therefore, review any of the findings of fact, but must consider them as properly determined by the referee. The press in question was mortgaged by Helmúth & Foestinger, on the 30th day of August, 1870, to E. Gr. "Wright, to secure him as the indorser of a note for $150. It was also mortgaged by Massman & Helmuth to Cottrell & Babcock on the 8th day of September, 1870, for the unpaid balance of the purchase money. No objection is made to the legal conclusion that these mortgages are valid. •
The lien of Wright is, therefore, prior in point of time, and superior to that of Cottrell & Babcock. The referee found that “After Wright paid the note for $150.00 to the Bank, for Helmuth as indorser, on December 2nd, 1870, under the conditions of his chattel mortgage, he sold, or rather traded the press to Edwards & Beardsley at private sale, with warranty of title, and took in payment thereof two
As a conclusion of law the referee found that this sale to Edwards & Beardsley should stand, and that Wright must account for the cash value of the press.
Upon exception to this part of the finding of the referee the court held that Wright had no power to sell for anything but cash; that the sale was for less than the full value of the press; and that Edwards & Beardsley were bound to know what Wright’s powers were under the mortgage.
L. Teedriek was surety upon the replevin bond. The court below rendered judgment against Edwards & Beardsley and L. Teedriek, surety upon the replevin bond, for $1,300, the
It is true Edwards & Beardsley claimed to be the owners of the press under a purchase from Wright; but they were required to prove no more than was necessary to entitle them to the possession of the press. Code, section 2729.
Upon this claim for rent the referee found, as a conclusion of law, that the press went into the premises leased from Mellinger & Co. unincumbered, and that the lien of the landlord for rent, accrued and to accrue, attached immediately, and is paramount to all other liens; and that although
Erom appellant’s abstract it would seem that the first claim made by Mellinger & Co., for a lien for their rent, was in answer to the cross-petition of Cottrell & Babcock, which petition was filed June 12th, 1872.
But an additional abstract of Mellinger & Co. shows that they were made parties to the original replevin suit of Cottrell & Babcock, and that, in answer to that suit, in January, 1871, which was within two months of the termination of their lease, they set up their claim and lien for rent, and asked judgment for a return of the property to them.
In view of this fact, the court did not err in preserving their lien.
Y. The court rendered judgment against Edwards & Béardsley for the value of the press, as found by the referee. In this there was error. The press never has been sold under the chattel mortgage. Edwards & Beardsley have simply succeeded to Wright’s lien.
It is ordered, therefore, that the press be sold under the chattel mortgage, as its terms prescribe; that out of the proceeds there be paid, first: the claim of Mellinger & Co., $210, with interest from May 24th, 1874, the date of the referee’s report, with interest at six per cent; second: to Edwards & Beardsley the amount of the Wright lien, $152.50 with like interest; third: to the payment of Cottrell & Babcock’s claim, $1,058.15, with interest from the same time. If anything remains it shall be paid to the mortgagors. If Edwards & Beardsley have placed the press beyond the reach of special execution, judgment shall be entered against them for its value, $1,300.00, to be applied as above named.
Eeversed