Owen v. Owen

9 Kan. 91 | Kan. | 1872

The opinion of the court was delivered by

Brewer, J.:

Defendant in error sued plaintiff in error for a divorce. By consent all the issues of fact and law were referred. The report of the referee was in favor of plaintiff in error. The district court refused to confirm this report, and on motion of defendant in error set it aside. Plaintiff in error seeks a reversal of this order, and a confirmation of the report.

Of the power of the court to make such an order there can beQ no doubt. The referee is an officer of the court, is appointed Tby and derives his authority from the court. He acts under its orders and is subject to its control. But we are not left to inference. The statute expressly provides for such action: Civil code § 306.

Did the district court err in setting aside this report? or rather, is it so manifest that the court erred, that we ought to reverse its ruling? The effect of setting aside the report is a new trial. The rights of neither party are concluded. Each has full opportunity to establish his claim or defense. As was said by Mr. Justice Valentine in giving the opinion of this court in the case of Kinnear v. Field, 5 Kas., 238, “But this court will require a much stronger and clearer showing of legal error, or abuse of judicial discretion, before, it will interfere where the new trial has been granted than where it has been refused, for the very obvious reason that where a new trial has been granted an opportunity is offered for another full and fair trial upon the merits of the case; but where it has been refused it operates as a final adjudication between the parties.” Six exceptions were filed to the report, among which was this, that “the report of the referee is not sustained by the evidence and is contrary to the evidence.” This, counsel for plaintiff in error earnestly insists, is the only exception entitled to any consideration; and in regard to this, that the rule to guide the district court in acting upon the report of the referee is the same as that which controls this court in acting upon the verdict of a jury returned in the district court. He claims that inasmuch as the judge of that court does not see the witnesses who appear before the referee, does not hear them testify, nor know in what manner their testimony is elicited, his judgment can be based only upon the record of that testimony. Hence the report of the referee should stand unless a great preponderance of the evidence is against it. He further claims that this court has the same opportunity as the district coirrt of weighing correctly the evidence, and that therefore unless the great preponderance of the testimony seems to us against the report we should reverse the order of the district court setting aside the report, and direct its confirmation. These rules applied strictly would make the approval or disapproval of the report of the referee by the district court a mere matter of form, purely a Avork of supererogation. We do not so understand the effect of the action of the district court. We think the district court should not set aside the report of a referee as against the evidence unless it clearly appears to him that the referee has failed to give due consideration to some of the testimony, and that a strong preponderance of the testimony is against the report. He Avill presume that the referee has given due Aveight to all the evidence, and that his conclusions therefrom are correct. He Avill be sIoav to interfere Avith those conclusions. But if he is convinced of the error of that report, and orders it set aside, such judgment of the district judge should and Avill carry great weight with this court, for he is in a better position than Ave are to determine as to -the correctness of the referee’s conclusions. The parties to the suit he may knoAV; the witnesses may have been before him in other trials, or he may have heard their testimony on motions in this case. He may understand peculiarities in the mind of the referee Avhich Avould cause certain kinds of testimony to have undue Aveight Avith him. He may be cognizant of personal friendships or antipathies between the referee and the parties, or counsel. He Avill probably be aAvare of any differences betAveen counsel in the manner of eliciting testimony, in their adroitness in presenting and withholding evidence. In short, being nearer to the parties and the proceedings he is more apt to know whether the report of the referee expresses the absolute truth. And when he has acted upon the report we shall not ignoré that action, and consider the report as though made originally to this court.

"We have examined with great care the report of the referee, and the bill of exceptions in this case, and it seems to us' the weight of the evidence is against the report of the referee.' True, the preponderance' is not so strong that We should set-aside the report if made originally to us. Rut inasmuch as ¡the district court has set it aside, and such action leaves each party full opportunity to establish his claim or defense, we 'shall presume in- favor of the correctness of such ruling and affirm the order.

All the Justices concurring.