Marr v. Marr

103 Pa. 463 | Pa. | 1883

Mr. Justice Gkeen

delivered the opinion of the court,

This case was submitted by the parties, by agreement in writing and tiled of record, to the decision of a referee learned in the law, under the Act of May 14th 1874 (P. L. 16G). By the third section of the Act, the referee is required to proceed to perforin the duties of his appointment, in all things pertaining to the trial and decision of the ease, in the same manner in all respects as would be done by the court under a like submission. The section further provides that the decision together with what pertains to it shall be filed of record, and shall in like manner and to the same extent be subject to exceptions and writ of error or appeal, as in cases submitted in like manner to the court. The Act of April 22d 1874 (P. L. p. 109), which authorizes the submission of civil causes to the decision of the court, directs, in the second section, that the decision of the court shall bo in writing, stating separately and distinctly the facts found, the answers to any points submitted in writing by counsel, and the conclusions of law, and shall be filed within sixty days after the termination of the trial, whereupon notice of the filing shall forthwith be given to the parties by the prothonotary or clerk, in order that exceptions may be filed within thirty days after service of notice. In the present case none of these requirements was observed. On the first of December, 1882, the report of the referee, dated the same day, was filed in the prothouotary’s office. The meeting, under the reference, wras ordered for the 10th of July 1882, but the appendix containing the evidence does not show the date of any meeting, or of the closing of the trial. It is alleged, however, and not denied, that the report was not filed until 133 days after the trial. There is no finding by the referee of any facts or any conclusions of lawq and in reality the report coutains nothing but an award that there was due, on the judgment in question, the sum of $10,155.27, on December 1st 1882, and a direction that judgment be entered for that amount with costs. On the day of the date of the report judgment was entered upon it, in express violation of the provision of the Act, which only authorizes judgment to be entered after the expiration of thirty days after notice by the prothonotary of the filing of the report, for the very purpose of allowing exceptions to be filed. No opportunity was afforded for filing exceptions after the report and before judgment. It is too plain for argument that the proceedings were fatally defective and erroneous throughout, and the jndg- • ment must therefore be reversed. It is indispensable to the validity of the report.of a referee under the Act of May 14th 1874, that it should state separately and distinctly the facts found and the conclusions of law resulting from the facts. In Butterfield v. Lathrop, 21 P. F. S. 229, we held, Siiaeswood, J'., that, “ it is evident that the xict contemplates that there shall be in each case what is equivalent to a special verdict. The finding of the referee must have the same certainty and fullness as is required in a special verdict, so that the judgment shall be the conclusion of law upon the facts.” This language is used with reference to the fourth section of the Act of April 6th 1869 (P. L. p. 725), authorizing the reference of civil 'actions in the county of Bradford. The language of that section is, so far as it relates to this subject, as follows: “ The said referee shall state the facts found and the conclusions of law separately.” The other provisions of the Act of 1869 are in substance very similar to those of the Act of May 14th 1874, and the principle of the above decision is quite applicable to the interpretation of the latter Act. As a writ of error or appeal lies directly from the decision of the referee to this court it is all the more important that every right of review which would have been enjoyed in cases submitted to the court, should be protected. 'We held, in City of Philadelphia v. Linnard, 1 Out. 250, construing the Act of May 14th 1874, that the court of common pleas has no jurisdiction to review the action of the referee; that this could only be done by the supreme court on error or appeal, and that the referee’s findings of fact are as conclusive as the verdict of a jury. We held also, that this Act was similar to the prior local Acts of 1869 and 1870, referring to the cases of Thornton v. Enterprise Ins. Co., 21 P. F. S. 234, and Butterfield v. Lathrop, Id. 225, and that the Act of 1874 in reference to the effect to be given to the report of the referee, has the same intendment as those Acts. The essential requisites of a special verdict are fully described in Vansyckel v. Stewart, 27 P. F. S. 124, and, tested by the rule there stated the report of the referee in the present case is entirely defective and void.

We are also of opinion that the referee was in error in rejecting the offers of proof covered by the third, fourth, fifth and sixth assignments of error. Those matters offered in evidence must be assumed as true, for the purposes of this argument, and, as such, they constituted the whole history of the transaction as alleged by the defendant, and he certainly could not be precluded from having them considered, by the allegation that they had all been finally settled by the action of his attorney. when a part of his offer was to prove that the attorney had no authority from him to make a binding settlement of the matters in controversy. We think the proper course for the referee would have been to hear all of this testimony, and then, upon all the evidence in the case, to report separately and distinctly all the facts found by him material and pertinent .to the issue, and also his conclusions of law upon the facts found, and conclude by reporting whether anything, and if so, how much was due upon the judgment in question. The case could then have been fully reviewed upon all its merits of law and fact, a course which it is impossible to adopt now as we have no findings or conclusions before us.

Judgment reversed, report and award set aside, and procedendo awarded.