| N.D. | Aug 14, 1891
Lead Opinion
Most of the alleged errors in the case are not properly before us. The action was for dissolution of a co-partnership between plaintiff and defendant. The issues coming on for trial at a regular term, the court made an order of reference, referring the action to a referee, “with the usual powers.” One of the errors assigned is the action of the referee in reporting findings of fact and conclusions of law. ' It is insisted that the order of reference is not broad enough to warrant the exercise by the referee of such power. The answer to this claim, is the consent of the defendant and appellant, made in open court, that, the case be referred “to take testimony and report.” In all cases it is the duty of the referee to report the evidence, and the word “report” in the consent is unnecessary, unless it be construed as embracing the report of' findings of fact and conclusions of law. Moreover, the order in terms referred the action, i. e., the whole case, and was not limited to any specific issue or fact. Where the order is upon consent, it may direct the reference to all or any of the issues. Assuming that this was an order of reference upon consent, all the issues must be regarded as having been referred, not only because the whole case is referred, but also because no particular issues are designated in the order. Laws 1889, c. 112, § 1. If it is a reference without consent the same conclusion is inevitable. It is apparent from § 2 of this act that unless the reference is limited by this order to .some specific question of fact, the referee is authorized to hear and decide all the issues. On the trial by a referee, practically the same proceedings are had as on a trial before the court. The referee must not only report the evidence, but also his findings and conclusions. This is what he has done in this case, and this it was his duty to do under the statute and the order of reference and defendant’s consent.
It is next insisted that the referee, if he had full authority to try the issues, erred in not ruling upon certain objections to evievidence offered by plaintiff and received by the referee. No exception having been taken before the referee, the defendant cannot avail himself of these objections. Section 8 of chapter 112 of Laws of 1889, requires the referee to report to the court
It is further urged that the court erred in not dismissing the action, because it is claimed that it appeared that the business in the prosecution of which were earned the profits, to recover his share of which the plaintiff instituted this action for disso-, lution and accounting, was the sale of intoxicating liquors, and that such business was illegal, because the plaintiff held no license, authorizing him to conduct the same, the only license being issued to and held by the defendant. There are several answers to this objection. The defense is not pleaded. Therefore defendant had no right to offer evidence on the point, nor could he avail himself of evidence sustaining it, although disclosed by plaintiff’s own case. Cardoze v. Swift, 113 Mass. 250" court="Mass." date_filed="1873-10-15" href="https://app.midpage.ai/document/cardoze-v-swift-6417393?utm_source=webapp" opinion_id="6417393">113 Mass. 250. Said the court in this case: “In such an action a defendant who has not pleaded illegality in the contract sued on has no right to offer evidence of such illegality or even to avail himself of it, when disclosed in the plaintiff’s testimony, if the court does not refuse to entertain the case.” See, also, Railroad Co. v. Miller, 16 Neb. 661" court="Neb." date_filed="1884-07-15" href="https://app.midpage.ai/document/atchison--nebraska-railroad-v-miller-6644320?utm_source=webapp" opinion_id="6644320">16 Neb. 661, 21 N. W. Rep. 451-453. The question is not before us for another reason. The error, if any, in denying the motion to dismiss was an error of law occuring on the trial. It should have been specified in the bill of exceptions. Comp.
Concurrence Opinion
(concurring.) The opinion of the court in this case, as formulated by the chief justice meets with my approval. Eor reasons stated in the opinion of the court, the appellant is not in a position to avail himself of the irregularities of practice occurring at the trial. In the interests of a sound practice, however, I deem it proper to add, as my individual opinion, that the order of reference in this case is very faulty. An order sending a case to a referee “with the usual powers” is blind and confusing, and necessarily so in view of the obvious fact that the “usual powers” of a referee will depend wholly upon what the referee is to do in the particular case. The referee’s powers are defined and limited, not only by the statute, but by the terms of the order of reference. In all cases the order of reference should be clear and explicit with respect to the duties required of the referee. If the court making the order desires the referee to determine the action and report findings of law and fact as well as the evidence, it should be so stated in the order; if less than this is intended, the limited nature of the referee’s duties should be clearly defined by the order of submission.