51 Iowa 44 | Iowa | 1879
— The report of the referee is as follows:
“2. That the claim of plaintiffs is not barred by the statute of limitations.
“3. That defendants were damaged because the wagons were not complete in the sum of seventy-five dollars.
“4. That the wagons were not as warranted, whereby defendants were damaged in the sum of three hundred and • sixty dollars.
“5. That there was no settlement as claimed by defendants.
“6. I do therefore recommend that plaintiffs -have judg- . ment against defendants for the sum of three hundred and seventy-six dollars and fifty-six cents, with interest at six per
The defendants moved to set aside the report and for a new trial on the following grounds:
“ 1. The sixth finding or recommendation is not supported by the facts found and reported by the referee, and because said finding is excessive under said facts, and the same is not supported by any conclusions of law.
“2. Because said sixth finding is contrary to law.
“3. Because said sixth finding is not consistent with the facts as found by the referee.
“4. Because plaintiffs’ claim is barred by the statute of limitations.”
The defendants also filed a motion for judgment for costs. Without ruling on the motions, but after argument thereon, and against defendants’ objections, the court made the following order: “Referred back to Hon. W. J. Moir for findings of fact as to agreement of payment and time of payment. ” In accordance with this order the referee, among other things, found and reported “that on or about the 1st day of August, 1871, defendants purchased of plaintiffs eighteen farm wagons, tobe paid for in six and twelve months, it not appearing from the evidence what portion- was to be paid in six and twelve months.”
Exceptions were filed to this report, and the court was moved to set the same aside on various grounds. All the motions made by defendants were overruled, and it is now insisted—
I. That the court had no power to refer the report back to the referee, and require him to make an additional finding.
The petition stated the goods and merchandise were sold on twelvemonths’time, and the statute of limitations was pleaded, and the referee reported the cause of action was not barred. Por the reason, it is presumed, that this was a* conclusion of
Clearly the defendants were not entitled to judgment on the report as it then stood, and the motion asking such relief was properly overruled. At most, defendants were only entitled to have the report set aside as a whole. The effect of this would be to grant a new trial, and this, it is claimed, is all -the court could do. We have, then, the case where the referee has failed, through oversight or otherwise, to report the facts .•as to all the issues made in the pleadings, and the report, against the objections of a party, is referred back to him to find the facts as to such issues.
The referee was not required to hear additional evidence, but to determine as to such issues from the evidence introduced on the trial, and his report shows that no additional evidence was introduced or considered. If the order required the referee to hear such evidence, or if it appeared he had done so, it may be his report should have been set aside. A cause cannot well be tried by piecemeal. Nor was the referee required to re-examine the evidence for the purpose of determining any question of fact already found and determined by him. Whether this could be done we have no occasion to ■determine. It is said when, a referee has filed his report his jurisdiction and power are at an end; that he cannot correct his report or make an additional report, any more than could a jury correct their verdict after they have separated.
The duties and powers of a jury are hardly analogous to -those of a referee. The latter stands in the place of the court, and the trial before him is conducted in the same manner, and his finding stands as the finding of the court. ■Code, §§ 2819, 2820, 2821. The court, at any time during the term, may correct its records, and may do so after the term by a proper order. Whether the court can thus correct findings of fact, or whether the powers of a referee, under the direction of the court, extend thus far, we are not required to determine, and it will be conceded a referee cannot on
Believing the rule herein adopted is the better practice, we have not sought diligently to ascertain whether it is sustained by authority elsewhere.
III. As the account which was attached to the petition is not contained in the abstract it must be presumed that the action was brought to recover for wagons sold and delivered. The referee finds they were so sold about August 1, 1871, on six and twelve, months’ time. The cause of action as to a part of the account may be conceded to have accrued Febru
IV. The other objections made in the motion to set aside the report all relate to what is designated as the sixth finding. This is the referee’s recommendation of the amount judgment should be rendered for. It is more in the nature of a conclusion of law than a finding of fact. Indeed, it may be well said to be the referee’s conclusion from other facts found.
One of the exceptions is that the finding is contrary to law. This is too general and indefinite. It will not be further noticed. The only other exception is that the amount found due is too large under the other facts found. The only question that can be considered under this exception is whether the wagons should be charged to the defendants at seventy-five or seventy dollars each. The finding is somewhat indefinite. What is meant by seventy-five dollars in farmers’ notes is uncertain. But we understand the meaning to be this: If the defendants sold any wagons to farmers and took notes therefor, they could pay for the wagons in such notes at the rate of seventy-five dollars for each wagon; but if no wagons were so sold then they were to pay seventy dollars for each wagon, in cash, at the expiration of the credit given. The original report does not show whether any of the wagons were sold and notes taken therefor or not. The action is brought to recover the cash price of the wagons. The court, therefore, erred in rendering judgment for the wagons at seventy-five dollars each.
Many other points are made in the argument of counsel, but they are based on the motion to set aside the additional report or were not made in the court below.
We have determined all the exceptions to the judgment of the Circuit Court which properly arise on the record. The
Modified and affirmed.