Michael v. Longman

42 Iowa 484 | Iowa | 1876

Day, J.

The court erred in sustaining the motion to strike from the files the motion to set aside the referee’s report. Appellee refers to and relies upon section 2823 of the Code. This section refers to the bill of exceptions signed by the referee during the trial for the purpose of presenting questions not otherwise apparent of record. See Edwards & Beardsly v. Cottrell & Babcock, at the present term. It has no' reference to the exceptions to the report of the referee referred to in section 2821, which must be made to the court and may be embodied in a motion to set the report aside. On the 27th day of April, 1874, the cause was continued, not to any particular day or time but generally, which is a eontinuanee to tbe next term. There was no agreement that the i-eport should be filed in vacation. The parties agreed that either party should have thirty days from the coming in of the report to file exceptions. The report did not, in a legal sense, come in when it was filed in vacation without agreement, but when court convened and the report was placed in a position to be presented to the court and acted upon. The motion to set it aside was filed in time, both under the law and under the agreement. The case of Roberts v. Gass, 27 Iowa, 225, relied on by appellee, is not in point. In that case it was agreed that judgment upon the report should be entered as of the term at which the order of reference was made. This implied an agreement to file the report in vacation.

The judgment must be

Reversed.