Meyer v. Eichler

Apr 1, 1919
Reporters:
, ,
Before:
Burnett
BURNETT, J.

1. There ar‘e four assignments of error. Under the first, and in this court for the first time, the defendant challenges the regularity of Davis ’ appointment. There is no showing made but that he was competent in every respect. It had been averred that he had no interest in the land and he confessed this allegation by his default.- Hence, it must be a fact that he was without interest in the matter. The remaining three assignments are to- the effect that the Circuit Court erred in confirming the majority report because it is unjust and inequitable; that it was wrongy in not adopting the minority report and that further error was committed in assessing costs and disbursements against the defendant. .

It was claimed arguendo that the first knowledge counsel for the defendant had of the appointment of Davis was when the plaintiff’s additional abstract was served; but the very decree appealed from recites that Davis had been duly appointed as referee. The report to which objections were made was signed by him and the supplemental abstract filed by the plaintiff in this court shows that he was appointed. Moreover, no objection.was made against the report on this ground in the Circuit Court.

2. It is urged for the first time here that the referees were not sworn and that the parties were not notified of their meeting. These objections may be dismissed on the ground that it is not required by the Code that the referees should take any oath or that notice of their meetings should be given. Even in the general provisions under Section 160 et seq., L. O. L., respecting trial by referees, there is no oath required of them.

It is not assigned as error that the plaintiff attempted to influence the referees. There is no show*5ing of what was done in that respect or that if done it had any effect on their decision. The very argument of the defendant that he had no notice implies the right of parties to be heard before the referees by legitimate discussion or representation. Furthermore, the plaintiff denies in her affidavit that she ever influenced them in any way.

3. We cannot give attention to any of the objections which were not urged before the Circuit Court. That tribunal is the court of original jurisdiction, while this court is only of appellate authority, with exceptions not important here. If a litigant would challenge the result of a decision in the Circuit Court he must show by the record that the judgment of that tribunal was first taken on the questions of which he now complains. The only exception to that rule is that for the first time it may be urged in this court that the complaint does not state facts sufficient to constitute a cause of action or suit or that the trial court had no jurisdiction of the cause.

4, 5. As to the inequality or injustice of the allotment of the referees, there is no showing of any corrupt or fraudulent decision. The utmost that can be said of the affidavits opposed to the report is that the affiants differ in opinion from the majority of the referees. The reasons for their views are very limited and do not, in our judgment, compare with the more comprehensive and unbiased statement given by the real estate dealer whose declaration has already been mentioned. The judgment of someone must prevail and the decision of the referees must stand as against the mere displeasure of one of the parties.

6. The defendant contends that if he had a choice between the two tracts at the same price he would prefer to take the one allotted to the plaintiff, and in his *6objections before tbe Circuit Court he offered, to exchange with her and to have the report modified accordingly. We cannot say that the court abused its discretion or authority in declining to adopt this suggestion. We are the less inclined to accept it because at the hearing before us the defendant’s counsel contended that such a change should require the plaintiff to assume two thirds of the mortgage indebtedness upon the whole tract, whereas it is admitted-that she owes but one third of it.

7. It is the rule declared by Section 483, L. O. L., that “the costs of partition, including‘fees of referees and other disbursements, shall be paid by the parties respectively entitled to share in the lands divided, in proportion to their respective interests therein, and may be included and specified in the decree.” The expenses of the suit were thus apportioned and the defendant has no cause to complain on that score. The decree of the Circuit, Court is affirmed. ’ Affirmed.

McBride, C. J., and Benson and Harris, JJ., concur.