No. 3951 | Colo. | Sep 15, 1900
delivered the opinion of the court.
The issue between the parties in the court below was raised by exceptions filed by appellees to the report of the referee, as administrator of the estate of Isaac Cooper, deceased. A reference was ordered, and the referee directed to examine the accounts, take testimony, and report the facts on items in report of administrator which were contested, together with the testimony taken. On the filing of the report of the referee, the administrator objected and excepted thereto, which, so far as necessary to notice, were to the effect that the findings of fact and conclusions of law that the administrator was not entitled to item charged for his. services rendered the estate, were against the evidence, and that the finding that the sum paid by the administrator to certain attorneys was excessive, was not supported by the evidence. We notice these two for the purpose of showing that the exceptions were in the proper form. They appear to have been filed in apt time. The record discloses that the court passed upon these exceptions, and overruled them without examining the testimony taken before the referee, and upon which he based his report.
Our civil code provides that when the reference is for all purposes, the clerk shall enter judgment upon the referee’s report in the same manner as if the action had been tried by
"When proper exceptions are filed, the findings of the referee do not become the findings of the court, unless approved by the court. • If the sufficiency of the evidence to sustain the findings of the referee is challenged, the court cannot determine this question without an examination of the testimony taken and reported by the referee. The object of permitting exceptions to be filed is to give the party filing them an opportunity to point out to the court wherein the report of the referee is. erroneous. The authority of the court thus invoked cannot be exercised capriciously. It cannot act intelligently without an examination of the questions raised by the exceptions, and when they challenge the sufficiency of the evidence to sustain the findings of the referee, it is both the province and duty of the court to examine the testimony and review the conclusions of the former. Failing to do this, over proper exceptions, it has no authority to approve the report.
It is urged on behalf of appellee that the bill of exceptions fails to show that all the evidence taken before the referee is incorporated therein. If we were required to examine the testimony upon which the referee based his report, this would be a material question; but the court having failed to examine the testimony returned by the referee, no findings have been made which we can review. In other words— until the court has regularly approved or modified the report of the referee, we are not required to do so, for the reason that this court cannot review findings of fact and conclusions of law which have never heen made.
Reversed and Remanded.