Lamaster v. Scofield & Cowperthwait, 5 Neb. 148

Lamaster v. Scofield & Cowperthwait

5 Neb. 148 | Neb. | 1876

Maxwell^ J.

This action was brought by Eindley against Lamaster for work, labor and services performed by him for the defendant, and for money loaned and advanced at his instance and request. The plaintiff claims abalance due him of $2,628.19. Lamaster in his answer to the petition claims a balance due him of the sum of $4,620.08. Findley in his reply denies all the facts stated in the answer.

At the September term, A. D. 1874, of the district court the following order was made in the cause:

“And now on this day this cause came on for hearing, and it was ordered by the court that G-. ~W. Oovell be, and he is hereby appointed referee to take the proofs, find the facts and the law, and report the same to this *154court; to all of which the defendant by his attorney excepted.”

The testimony was taken before the referee who found in favor of Findley, and that there was due him from Lamaster the sum of $1,799.50. Exceptions were filed to the report by the defendant which were overruled, and judgment rendered on the report. The case is brought into this court by petition in error.

The first question presented is the authority of the court to refer a case of this kind without the consent of the parties. This court in Mills v. Miller, 3 Neb., 94, held that'a purely legal action could not be referred, except by consent of parties, as neither party can be deprived of the right of trial by jury in such cases.

While courts of equity entertain concurrent jurisdiction with courts of law in matters of account, yet if the account can be fairly taken in a court of law, equity will not interfere. Daithy v. Clemens, 6 Beavan, 165.

In Fowle v. Lawrason’s Exr., 5 Peters, 495, the supreme court of the United States held: “that a court of chancery has jurisdiction in matters of account cannot be questioned; nor can it be doubted that this jurisdiction is often beneficially exercised; but it cannot be admitted that a court of equity may take cognizance of every action for goods, wares and merchandise, sold and delivered, or of money advanced, when partial payments have been made, or of every contract express or implied, consisting of various items on which sums of money have become due, and different payments have been made. Although the line may not be drawn with absolute precision, yet it may be safely affirmed that a court of chancery cannot draw to itself every transaction between individuals, in which an account between parties is to be adj usted. In all cases in which an action of account would be the proper remedy at law, and in all cases where a trustee is a party, the jurisdiction of a court of equity is undoubted. *155It is the appropriate tribunal. But in transactions not of this peculiar character, great complexity ought to exist in the accounts, or some difficulty at law should interpose, some discovery should be required, in order to induce a court of chancery to exercise jurisdiction.”

Some of the reasons why resort was had to a court of equity are thus stated by a learned author. “ If the demand be of consequence, and the matter of an intricate nature * * * it is more advisable to resort to a court of equity, where matters of account are more commodiously adjusted, and determined more advantageously for both parties; the plaintiff being entitled to a discovery of the boohs, papers, and the defendant’s oath, and on the other hand the defendant being allowed to discount the sums paid or expended by him.” Bacon’s Abr. Aceompt.

Judge Story says: “In cases of account, there seems a distinct ground upon which the jurisdiction for discovery should incidentally carry the jurisdiction for relief. In the first place the remedy at law in most cases of this sort is imperfect or inadequate. In the next place where this objection does ncit occur, the discovery sought must often be obtained through the instrumentality of a master, or of some interlocutory order of the court; in which case it would seem strange that a court should grant some and not proceed to full relief. In the next place, in cases not falling under either of these predicaments, the compelling of the production of vouchers and documents would seem to belong peculiarly to a court of equity, and be a species of relief.” Story’s Equity Jurs., section 67.

Under the code, discovery has ceased to be one of the objects sought in a court of equity; jurisdiction, therefore, in cases involving the examination of mutual accounts, cannot be maintained on that ground. The parties to the suit may be examined as witnesses in the *156case; and a court of law has authority, equal to that possessed by a court of equity, to compel the production of books, vouchers, or other documentary evidence. The jurisdiction of courts of equity is therefore restricted to those cases which have their origin in intimate or confidential relations of the parties, and does not extend to ordinary actions involving mutual accounts between creditor and debtor. In all such cases either party has a right to demand a jury; and a court cannot refer such a cause except by consent of the parties. This right is guaranteed by the constitution and its application should not be restricted by the courts.

It is conceded that the referee was not sworn. And it is- urged that as the law requires he should take an oath, that the failure to do so renders the entire proceedings void. The referee derives his authority from the order of the court and not from the oath. The failure to take, the oath required by law, therefore, is a mere irregularity that the parties waived by proceeding to trial without objection on that ground. Keator v. Ulster Plank Road Co., 7 How. Pr., 41.

This is an action at law. The court, therefore, erred in appointing a referee to determine the issues. The judgment of the district court is reversed and the cause remanded for further proceedings.

Reversed and remanded.

Mr. Justice Gantt, before whom the cause was argued below, did not sit.