133 F.2d 48 | D.C. Cir. | 1943
Appellee sued to recover for board, including room, which he claimed to have furnished to appellant and his wife during eight years under an agreement by appel
Appellant filed exceptions to the auditor’s report. Appellee filed no exceptions or objections. When the case again came on for trial, appellant moved to withdraw his exceptions and confirm the auditor’s report. The court denied the motion, and the case was again tried to a jury on all issues. This trial resulted in a verdict for appellee for $2,750 “without, interest.” The court added interest from the time suit was filed. This appeal followed.
The District of Columbia Code provides that either party may except to any part of an auditor’s “report and account,” and that the issues “made by said exceptions shall be tried and determined in the same manner as other issues of law or fact made by the pleadings in an action at common law, and any part of such report and account not so excepted to shall be adjudged to be conclusive between the parties * * *.”
“(3) In Jury Actions. In an action to be tried by a jury the master shall not be directed to report the evidence. His findings upon the issues submitted to him are admissible as evidence of the matters found and may be read to the jury, subject to the ruling of the court upon any objections in point of law whi-ch may be made to the report.
“(4) Stipulation as to Findings. The effect of a master’s report is the same whether or not the parties have consented to the reference; but, when the parties stipulate that a master’s findings of fact shall be final, only questions of law arising upon the report shall thereafter be considered.”
It seems clear that under this Rule the absence of exceptions to a master’s report does not make his findings conclusive. The Rule appears to make his findings mere “evidence” unless the parties “stipulate” that they shall be final. Although Rule 53(e) provides in general terms for objections to a master’s report in nonjury actions, in jury actions it provides only for “objections in point of law.” We cannot say that the absence of objections amounts, in this jury action, to a stipulation that the master’s findings of fact shall be final. The history of the Rule confirms this construction.
As the question is procedural, the Rule invalidates the contrary provision of the Code.
We think the court erred in adding interest to the jury’s verdict. Though the parties stipulated at pre-trial “that the sum of $50 per month for two people is a fair and reasonable sum,” this could not turn the suit for breach of contract into a suit to recover a liquidated debt. The stipulation merely answered, after the suit
Judgment modified.
D.C.Code 1940, § 16—103, 31 Stat. 1231. Italics supplied.
Italics supplied.
Former Federal Equity Rule 66, 28 U.S.C.A. § 723 Appendix, provided: “The parties shall have twenty days from the time of the filing of the report to file exceptions thereto, and if no exceptions are within that period filed by either party, the report shall stand confirmed. If exceptions are filed, they shall stand for hearing before the court * * The drafting committee’s note to Rule 53(e) states: “This contains the substance of Equity Rules 61 :s * * and 66 * * * with modifications as to the form and effect of the report and for inclusion of reports by auditors, referees, and examiners, and references in actions formerly legal.” Italics supplied.
Sibbach v. Wilson & Co., Inc., 312 U.S. 1, 61 S.Ct. 422, 85 L.Ed. 479.
D.C.Code 1940, §§ 28—2707, 28—2708, 31 Stat. 1378. Fries, Beall & Sharp Co. v. Livingstone, 56 App.D.C. 209, 12 F.2d 150.
New York, Lake Erie & Western Railroad Co. v. Estill, 147 U.S. 591, 622, 623, 13 S.Ct. 444, 456, 37 L.Ed. 292.