2 S.D. 300 | S.D. | 1891
This was an action on an insurance policy. The case was tried by a referee, who reported the facts in favor of the plaintiff, upon which judgment was entered. Defendant appeals. Exceptions were filed to the report of the referee in the court below, but, on motion for judgment, the report was confirmed by an order, the material part of which is as follows: ‘ ‘It is ordered that the report of the referee herein be, and the same is, in all things confirmed; and the following findings of fact are hereby made the findings of the court to the same extent and as fully as if the same was separately set out as the findings of the court.” The findings of fact reported by the referee, with a few slight changes, were signed by the court. To the findings so signed by the court is added the following: “The court finds, as matter of law, that plaintiff is entitled to judgment against said defendant for the sum of 8980.28, with interest from July 22, 1889.” This was also signed by the court. Upon the findings and conclusions of law so found judgment was rendered in favor of plaintiff, in which is the following recital:” “An action having been brought herein by the above named plaintiff against the above named defendant for the recovery of money, and issue having been duly joined in said action, and the same having been duly and legally referred by consent of parties to John H. Baldwin, Esq., an attorney and counselor at law, and said. Baldwin hav
The first point made by appellant is that the court erred in confirming the report of the referee, for the reason that there had been no order made by the court, or judge thereof, referring the issues in this action to J. H. Baldwin, as referee, to hear and determine the' same, or report his findings of fact and conclusions of law thereon; and that the issues in an action, whether of law or fact, can only be refer: ed by the court, or judge thereof, in the manner provided by law. Section 1, Chapter 112, Laws 1889, provides as follows: “Section 271 of the Code of Civil Procedure is hereby amended so as to read as follows: “Sec. 271. All or any of the issues in an action, whether of fact or law, or both, may be referred by the court or judge thereof, upon the written consent of the parties, and the fees of such referee shall be fixed by the court, which
Counsel for appellant in his brief has failed to point out anj evidence in the record that such an order was nob made,
2. Counsel for defendant further contends that the court erred in confirming the report of the referee, as the referee failed to state his findings of fact and conclusions of law separately, as required by the statute. Assuming that the facts are
3. The third and last point made by appellant is that the court erred in confirming the report of the referee, as the same was returned by the referee without the evidence taken by him on the hearing. Counsel for appellant contends that, by the provisions of Section 3, of the chapter referred to, referees must report their findings, “together with all the evidence taken by them, and all exceptions taken on the hearing.’’ This provision is no doubt mandatory, and must be complied with, and, if the fact that a judgment was rendered when the evidence had not been reported affirmatively appeared in the record, and a proper motion had been made in the court below, an important question would be presented to the court. Supervisors v. Ehlers, 45 Wis. 281. While appellant’s exception asserted in the court below ‘ ‘that no evidence whatever is certified, reported or submitted to this court by the referee, and there is now no evidence properly before this court upon which this court can review,” etc., there is nothing in the record to show that the evidence was not reported, and was not before this court at the time the motion for judgment was heard and decided. In fact, it does affirmatively appear by the certificate of the judge that all the evidence and depositions were returned to the court at some time, and in respondent’s additional abstract it is stated ‘ ‘all the evidence taken before the referee and all depositions were before the court on the motion to confirm.” This statement in the additional abstract is not controverted by appellant. Hence this point is settled against appellant by the record in the case, and it becomes unnecessary to further discuss it in this opinion. It may have been true that