27 S.D. 281 | S.D. | 1911
Plaintiff, who is appellant here, brought an action in the circuit court of Roberts county to recover $1,368.75 alleged to be due him .as clerk of court for the years 1900, 1901, and 1902, as a balance of salary, fees, and compensation fixed by statute. Defendant answered alleging a complete settlement and adjustment of plaintiff’s claim, and pleading a counterclaim. Hon. R. W. Crofoot was appointed referee to try and determine the issues in the action. The order of reference was made on November 22, 1904. A trial was lifid before the referee in January, 1905. On May 26, 1905, plaintiff served his brief and written argument upon defendant’s attorneys, and on June 3, 1905, defendant’s attorneys served brief and written argument upon the plaintiff’s counsel. June 14, 1909, a little more than four years later, the referee filed his findings and decision in the office of the clerk of court, awarding plaintiff a recovery of $1,200.79 with interest. Upon the filing of the report, defendant interposed exceptions thereto on numerous grounds, only one of which is material to the question presented on this appeal. This exception is as follows : “Defendant excepts to the proposed report and findings of fact and conclusions of law on the ground that the referee has no jurisdiction to make, sign, or return the same, and that he has lost jurisdiction for the reason that the same were not made and
The only question before us is whether the jurisdiction of the referee was terminated by his failure to file his report within the 20 days provided by statute. Appellant contends that the -provision of section 287, Code of Civil Procedure, requiring the report to be filed within 20 days, is directory only, and that the failure of the referee to file his report does not terminate his jurisdiction. It is respondent’s -contention that this statute is in its terms mandatory, and that under its provisions the time for making the -report “may be extended by the consent of the parties or by order of the court or judge,” and not otherwise. Appellant contends that the statute limiting the time within which the report of the referee must be filed was enacted for the benefit of the parties to the suit,' and, if they had not in some way objected to
On the other hand, under statutes similar to ours it has been held that the time within which the referee is required to make his report is directory merely. In Keller v. Sutrick, 22 Cal. 471, the court says: “The next error assigned is that the report of the referee was not filed within 10 days after the testimony was closed as required by section 187 of the practice act. * * * This provision as to the time within which the referee must file his report we regard merely directory, and a failure to file within the time prescribed cannot have the effect of invalidating the report or the judgment rendered thereon. No such consequences are declared by the statute.” In Emerson v. Bigler, 21 Mont. 200, 53 Pac.
It seems to us that the statutes'fixing the time within'which courts and referees are required to file decisions were both framed with a view to expediting the; determination of causes, rather than to limit the powers or jurisdiction of either courts or referees. And if we were required to hold that either party to a cause pending before a referee may remain inactive, and submit to a delay of years on the part of the referee without taking any >steps either to compel a repprt or terminate the reference, and may wait until an adverse decision is rendered before objecting to the action of the referee, this court would lend its aid to' delay, rather than expedite, the administration of justice. We believe the rights of litigants will be best subserved by holding the statute directory only.
The order of the trial court is reversed, and the'cause remanded for further proceedingis according to law.
