268 S.W. 420 | Mo. Ct. App. | 1925
Lead Opinion
The first count is based on a claim of $215, alleged to be due Kammann, and assigned to Davis. There were four items in this count. *470
The second count is based upon a claim assigned by Kammann to Davis, amounting to $410, for legal services. There are five items in this count.
The third count consists of four items, and is for $450, alleged to be due for legal services performed by Davis for defendant and August Franke.
The fourth count, consisting of six items, is for $375.64.
Defendant's first answer consisted of a general denial, after which, upon oral application of plaintiff, the court appointed a referee to hear and determine the issues. Defendant excepted to this action of the court, and afterwards filed a motion to set aside the order appointing a referee, on the grounds that the suit was not a proper one for the appointment of a referee, and that no time was given to agree upon any one to act as such. This motion was overruled, and a motion for a nunc pro tunc order to correct the minutes was filed. This motion was also overruled. Exceptions were saved to these rulings, and a term bill of exceptions was filed.
Defendant then filed an amended answer, consisting of a general denial, and a plea of payment as to a certain portion of the items claimed to be due by plaintiff.
The testimony was taken by the referee, and a report made. The referee was allowed $310 for his services, and judgment was entered in favor of the plaintiff against the defendant for $1014.15, and $284.95 was allowed and taxed as costs for stenographic fees. From this order and judgment defendant in due time and manner has appealed to this court.
The record discloses that Kammann assigned his interest to Davis. The evidence is quite voluminous, and it is unnecessary, under the circumstances in which this case is presented for our consideration on appeal, to set it out in detail.
Both Kammann and Davis testified as to the services which they rendered, and introduced the contracts under which a portion of the amount due was claimed. Three lawyers of the city of St. Louis testified as to the reasonable *471 value of the services rendered. The defendant denied a good part of the testimony offered on the part of the plaintiff, and introduced evidence tending to show that the conduct of these attorneys, Davis and Kammann, was questionable with respect to legal matters that had been entrusted to their care. The whole question was gone into by the referee, and upon his recommendations judgment was rendered for plaintiff for the sum above stated.
The first question presented for our consideration here is that the court erred in appointing a referee in this case, because it is not such a case as required the appointment of a referee. But we are precluded from considering this question because defendant makes no complaint of the trial court's action in this respect in his motion for new trial. He contends that, under the authority of Dean v. Wabash R. Co.,
The defendant evidently proceeds upon the theory that all matters brought up by a term bill are to be considered as part of the record proper. They are a part of the record just as the other proceedings at the trial are made a part of the record when brought here by a proper bill of exceptions. But they are matters of exception, and are not part of the record proper. A motion to vacate the appointment of a receiver is no part of the record proper, and in order to entitle the mover to have the *472
order reviewed in the appellate court the matter should be preserved in a bill of exceptions. [Cantwell v. Lead Co.,
Before we could consider the question of the validity of the court's action in appointing a referee, or in overruling the motion to set aside the appointment, the defendant would have to complain of the trial court's action in respect thereto in his motion for new trial. [Foster v. Sayman (Mo.App.),
There was substantial evidence to support the judgment; and the findings of fact made by a referee in such a case as this when approved and confirmed by the trial court occupy the samestatus as a verdict of the jury and will not be disturbed on appeal if supported by substantial evidence. [Kline Cloak Suit Co. v. Morris, supra.] *473
It is insisted that the court erred in allowing the referee $300, because such referee failed to comply with certain rules of the lower court. There is nothing in this record to indicate such a fact, if it be a fact.
The Commissioner recommends that the judgment be affirmed.
Addendum
The foregoing opinion of NIPPER, C., is adopted as the opinion of the court. The judgment of the circuit court is accordingly affirmed. Allen, P.J., Becker and Daues, JJ., concur.