45 Iowa 501 | Iowa | 1877
I. There is apparent and irreconcilable conflict in the record, as presented to us, upon the question of the consent of the parties to the order of reference. The defendant seems to have-objected thereto upon all proper occasions. But the order of the court, which shows the action had upon the subject, explicitly recites.that the reference was made upon the agreement of the parties. We are bound by this adjudication of the court upon the question of the assent of the par ties, rather than by other matters appearing in the record contradictory thereto. We must regard the reference of the ■ease as having been made with the consent of the defendant.
The provisions controlling the reference of causes generally are found in the following sections of the Code:
“ 2815. All or any of the issues in an action, whether of fact or of law, may' be referred upon consent of the parties, either written or oral, in court, entered upon the record.
“2816. Where the parties do not-consent, the court may, upon its own motion, direct a reference in either of the following cases:
«2 * x x * x x x x x
«g x x x x x x x x x
“ 3. Where a question of fact shall arise in anjr action by equitable proceedings, in which case the court, in the order*503 of reference, shall prescribe the manner in which the testimony shall be taken on the trial.”
Under these sections all actions may be referred by consent, and chancery cases, wherein questions of fact arise, without consent. It may be conceded that, if no other provision renders these sections inapplicable to divorce cases, they may be referred by consent under the first section just cited, and, being prosecuted by equitable proceedings, they may be referred under the other when issues of fact arise therein. State v. Orwig, 25 Iowa, 280.
The trial required in this section is to be had in open court. We are first charged with the task of determining the purport and effect of the words “ open court.” The language is simple and its meaning obvious. The trial must be in a court. Blackstone, adopting Coke’s definition, says, “a court is a-place where justice is judicially administered.” 3 Bl. Com., 24. But this definition obviously wants fullness; it is limited to the place of a court in its expression. In addition to the place, there must be the presence of the officers constituting the court, the judge or judges certainly, and probably the clerk authorized to record the action of the court; time must be regarded, too, for the officers of a court must be present at the place and at the time appointed by law in order to constitute a court. To give existence to a court, then, its officers and the time and place of holding it must be such as are prescribed by law. The Circuit Court is to be held by the Circuit Judge (Code, Chap. 5,'Title III), and its terms are prescribed by law (§ 163). The places of holding it are also prescribed, and it cannot be held elsewhere (§ 192). To constitute the Circuit Court, then, the Circuit Judge must be in
The word open-, used in the section before us as an adjective qualifying the noun co%irt, is to be understood as conveying the idea in this connection that the court must be in session, organized for the transaction of judicial business. This is its meaning when used elsewhere, in the Code. See § § 2805, 191, 4390, 2141. It may, possibly, in this connection, mean public, free to all. If so, such signification would not materially change the force of the expression, and certainly would not require us to understand the term court to imply anything other than a tribunal organized for the administration of justice at the time and place prescribed by law.
Counsel for plaintiff insists that the sole office of the words “ open court ” is to secure the trial of divorce cases publicly, to prevent secret proceedings therein by providing that no one shall be refused admittance to the court while such cases are on hearing. While, as we shall hereafter see, such, doubtless, was the legislative intention in enacting the provision, the object is not attained by providing that the trials shall be in public courts, but rather that the trials shall be before the courts themselves, and not elsewhere or at any other times than the law prescribes for the sessions of courts. It cannot be thought that this provision was introduced to secure public trials, when a general statute requires the same thing. Code, § Í89.
The trial of divorce cases then must be before the court as we have expressed the meaning of the term. But it is insisted that the referee in this case, when in discharge of his duties, was the court and, therefore, this requirement was complied with. This position is untenable. The referee is not the judge of a court but an officer thereof, acting under appointment and charged with certain special duties. The law confides to him no judicial powers further than they are conferred upon him by t.he court’s appointment. He has no power to hold the court. If, therefore, he discharges tlie-duties intrusted to him at the time and place prescribed by law for holding
But it is argued that as § 2819 provides “the referee shall stand in the place of the court, and shall have the same power, so far as necessary, to discharge his duty,” the law regards him as the court. The language of this section refutes the proposition. The referee, it is provided, “ stands in the place of the court;” that is, he is charged with duties and possesses powers with which the court is clothed. But he is not the court; he simply stands in its place. Surely, had it been the intention of the law-makers that the referee should constitute the court, no such language would have been used.
The power of the court in actions that are not of purely equitable cognizance, to appoint referees for the trial of such causes rests alone upon legislative enactment. It may be that in cases originally cognizable in chancery such power is possessed. State v. Orwig, 25 Iowa, 280. But this inquiry we need not pursue. It must be admitted that, if the statute forbids the reference of cases of a particular class, or requires them to be tried by the court, they cannot be referred, and an order to that effect would be void. The court, by such an order, could not confer authority upon the referee to try the cause. The order would not be valid if made with the consent of the parties for the simple reason that the law forbids the reference — requires the court to try the case itself. This position, we think, cannot be disputed. We conclude, therefore, that actions for divorce may not be referred for trial even with the consent of the parties.
Y. Section 2222, under the construction we have adopted, is not in conflict with § § 2815 and 2816. These being general in their character cannot be regarded as inconsistent with the other, which is special and applicable alone to divorce cases. Such cases are taken out of the operation of the general statute by the special provisions of § 2222. These several sections being in pari materia must be so construed together that all may stand. Under our construction the
After the coming in of the report defendant, according to the usual practice, filed exceptions thereto on various grounds, among others, that the findings of facts by the referee are in conflict with, and unsupported by, the evidence. These exceptions were tried by the court in the manner of reviewing the finding of facts by referees. The court, we presume, examined the evidence and decided upon the exceptions in the light of such examination. But we cannot' denominate such, determination of the exceptions upon a consideration of the evidence, a trial of the case by the court. It was more in the nature of a review for the correction of -errors. Whatever it may be like, certain it is that it is not and never has been called a trial, as the word is used in law. It is not the trial in open court, -required in this class of cases.
Beversed.