21 Wis. 294 | Wis. | 1867
Lead Opinion
At the January term, 1865, of the circuit court, a stipulation, signed by the attorneys of the parties, was filed, by which they stipulated “ that the case be referred to Hon. David Noggle, referee to bear, try and determine; and it is also agreed that should said referee’s decision be made after the March term and before the July term of this court, the judgment on such report may be entered as of the March term of the court; and it is further agreed that the demurrer in said action be first decided by said referee, with the same effect as though decided by the court, and that thereupon pleadings be made in accordance with such decision, and that the parties then proceed to trial.” And on filing the stipulation, the court (Hon. David Noggle being the judge) “ ordered that this action and all the issues therein be referred to Hon. David Noggle, as referee herein to bear, try and determine the same pursuant to said stipulation.” On the third day of August, 1865, when the trial before the referee came on, it was further stipulated that the fees of the referee be fixed at nine dollars per day; and these fees were paid and taxed as costs. It requires but a very slight examination of the statute authorizing and regulating references of actions, to come to the conclusion that a referee or referees must be a person or persons other than the judge of the court to whom the report of the referee is to be made. Tbe statute clearly contemplates that the action of the court in confirming or setting aside the report should not be by the same mind as that which acted in mating it. As a statutory reference, therefore, the reference- in this action is void.
In Dinsmore v. Smith, 17 Wis., 20, the court sustained a similar reference on the ground that it was equivalent to a stipulation that the cause might be tried before the judge at chambers. But it is a well settled principle, that to give any effect to a trial by stipulation at chambers, the stipulation must con
Did the stipulation to refer authorize the court to enter the judgment on the report? It was therein agreed that if the referee’s decision should be made after the March and before the July term of the court, judgment might be entered as of the March term. The report was not made before the July term. Such agreements are construed with great strictness, and the right to enter judgment cannot be taken by implication. 19 Wend., 108, and authorities there cited. And the reason is, that the court would have no right to modify the report or review the testimony, but only to enter judgment according to the terms of the agreement, which should be clear and express. The report not having been made before the July term of the court, the reference operates as a discontinuance of the cause.
By the Court. — The judgment of the circuit court is reversed, and cause remanded.
Rehearing
On a motion by the respondent for a rehearing, Barnes & Thomas, for the motion, contended that no objection having been taken, at any stage of the action in the court below, nor in this court, by the appellant, to the order referring the cause to the judge of the circuit court for trial, the irregularity in making such reference, if there was one, was waived, and the judgment could not properly be reversed on account of it. 2• There is no evidence before this court that the Hon. David Noggle, to whom the cause was referred, is identical with the person of the same name who was judge of the circuit court, nor was that fact suggested by the counsel on either side. The ¶resumption must be, that the circuit court acted according to law; and if the appointment of the judge as referee would have been illegal, it must be presumed, in the absence of any evidence or suggestion to the contrary, that the person appointed was not such judge. 3. If any rule of law or public policy is violated by the appointment of the judge as referee, consent talces away the error. Yates v. Russell, 17 Johns., 465. 4. It
.Ought the motion for a rehearing to be granted ? If the order of reference was not authorized by the statute, the proceedings before the referee are equivalent to a common law arbitration. Section 22, ch. 132, R. S., provides that all or any of the issues of fact or of law, or both, may be referred upon the written consent of the parties; and section 24 further provides that the parties may agree upon a suitable person or persons, not exceeding three, and the reference shall be ordered accordingly; and if the parties do not agree, the court shall appoint one or more referees, not exceeding .three, who shall be free from exception. The statute — -not the stipulation of the parties — confers the authority upon the court. That authority can be exercised only upon the written consent of the parties. After the written consent to refer is given, if the parties do not agree upon a suitable person or persons, the court may, without such agreement, appoint one or more persons free from exception. Can the court, even with the consent
2. Can the office of judge of a court of record, and that of a statutory referee appointed by the same court, be properly held and exercised by one and the same man ? If a referee fails to report, either party has a right to rule him to report; or, if he fails to act after he has accepted the appointment, to obtain an order of the court that he proceed; or, if he suppresses a part of the testimony, or makes a defective report, to require him to amend the report. The statute provides that the court may require the referees to amend their report when necessary. All these orders, if 'not obeyed, may be enforced by the court by attaching and imprisoning the referee, or fining him ; and for improper conduct, or even for failing to discharge the duties of his office, he may be removed by the court, and another referee appointed. A court cannot, of course, rule, fine, attach or imprison its own sole judge. And how long might a case be delayed before either party would ask the court who had appointed the judge thereof referee, to remove such referee and appoint another? In these remarks we make no reflection upon the late learned judge of the first circuit, who made the order in this case. His integrity we do not question. But there may be indolent, dilatory or even corrupt judges. And our remarks are to the effect, that it was clearly not the intention of the legislature, that the sole j udge of a court, and a referee in a cause in the same court, should be one and the same person.
A case was recently referred in one of our circuit courts to a referee, with a stipulation that the referee’s fees should be five dollars per day. He took the testimony, made his report ready
These remarks apply exclusively to a statutory reference.
3. What bearing on the construction of the statute has the fees of the. referee? If the judge can act at all as a statutory referee, then he has a right to the fees allowed by statute to a referee, or to such other fees as the parties may agree to pay him. He is forbidden to receive any fees for services as judge. His salary is a sufficient remuneration for such services. But the prohibition goes no further. If he can act as referee, the cirMt judge was right in taking the fees of a referee. This case affords a good illustration of the tendencies of such practice. It is not a case for a compulsory refenrence. Unless the parties agreed to refer, the court must have tried the case, and the judge must have performed substantially the same services in open court, without any compensation other than his salary, which he performed as referee, and received the additional compensation therefor of nine dollars per day. It is very evident that if such practice is tolerated, it would be for the interest of the judge to try cases as referee. Such a practice would add to his income. And by giving preference to referred cases, so that they would be more expeditiously disposed
For these reasons we held, and still hold, that the judge could not act as a statutory referee, and that the order of reference to him is void as a statutory reference.
By the Court — The motion for a rehearing is overruled.
Dissenting Opinion
dissents, except as to the point that under the constitution of this state, the judge of a circuit court cannot lawfully receive fees for services rendered in the trial of a cause pending in said court.