21 W. Va. 262 | W. Va. | 1883
announced the opinion of the Court:
The appellant insists that there was no error on the face of the report, and, consequently, so much of it as was not excepted to by either party is presumed to be admitted by them, respectively, to be correct, and that it was, therefore, error for the court to remodel and restate the whole account without reference to the position taken and occupied by the parties in relation to said report.
The party complaining of a commissioner’s report must point out the error of which he complains by exceptions thereto so as to direct the mind of the court to it, and when he does so the parts not excepted to are presumed to be admitted to be correct, not only as regards the principles but also as to the evidence on which such parts are founded.—
A commissioner’s report, if erroneous on its face, may be objected to on the hearing, though not excepted to; but without such exception it cannot be impeached by adult parties on grounds and in relation to matters, which may be affected by extraneous testimony. McCarty v. Chalfant, supra; Hyman v. Smith, 10 W. Va. 298. When adult defendants fail to except to a repoi-t of a commissioner they are deemed to acquiesce therein, and they will not be permitted to impeach it either at the hearing of the cause or in the appellate court except for errors apparent upon its face. Wyatt v. Thompson, 10 W. Va. 645; Laidley v. Kline, 8 Id. 218; Penn v. Spencer, 17 Gratt. 85; Ogle v. Adams, 12 W. Va. 213.
In Perkins v. Saunders, Tucker, Judge, in delivering the opinion of the court says: “ I have considered it as a settled principle that this court will not enter into an examination of accounts referred to a commissioner, and settled by him, unless an exception to them has been taken in the court of chancery, nor then, unless the exception be so stated as that this court may decide upon the equity, or legality, of the principle only, upon which the article is admitted or rejected, without wasting their time in adjusting the particulars of a long and intricate account — a business which is the peculiar province of a commissioner and accountant — and which, if this court were to admit themselves to be bound to engage in, would in a year or two put a total stop to the administration of justice in civil causes in this commonwealth.” 2 H. & M. 422; 14 W. Va. 559.
The foregoing principles, for the most part, have reference to appellate courts, but it seems to me the same reasons, which make them proper and necessary for the disposal of the business in those courts, would require their observance in courts of original jurisdiction, the judges of which have as little and, perhaps, less time and fewer facilities for making calculations and unravelling tedious details of complicated accounts. The main object of referring a cause to a commissioner is to relieve the court of such labors. In almost every settlement a large portion of the items are undisputed, and the commissioner having the parties before him can more
In the case at bar I am of opinion, that the complicated condition of the accounts between the parties and the voluminous and contradictory character of the testimony in relation thereto fully warranted the reference to a commissioner. The parties are all sui juris; and they having availed themselves of their legal rights by excepting to such parts of the report, as they deemed to be erroneous, the parts not excepted to -were presumed to be admitted by them to be correct. In this condition of the cause the court made a statement oi the accounts between the parties which it made the basis of the decree of December 6, 1879. This statement was obviously made without reference to the report or the exceptions filed thereto. It seems to be founded entirely upon the court’s estimate of the proofs in the cause, because it introduces items not allowed by the commissioner and not excepted because not allowed, and it excludes others allowed by the commissioner and not excepted to by any party. The parties, in the absence of any exception had a right, as we have seen, to rely upon the sufficiency of the evidence to sustain such parts of the report as were not excepted to; consequently, the court erred in disregarding the report and entering a decree lounded on its own statement of the accounts between the parties without reference to said report or the implied admissions therein of the parts not excepted to, especially as the facts might have been explained or changed by extrinsic evidence.
Proceeding now to dispose of the exceptions to the report of Commissioner Jones as the circuit court should have done,
The second, and fourth because Washington G. Ward in his answer to the plaintiff's bill expressly admits that the plaintiff paid for him thirty-seven dollars and fifty cents to Caleb Boggess and sixty-five dollars to R. S. Ward.
The fifth, because the one thousand dollars referred to in this exception was charged on the account presented to said Washington G. Ward in 1869, when a settlement was attempted between said Ward and the plaintiff, and it was, also, asserted in the plaintiff's bill and charged on the account filed therewith, and its correctness was not questioned except by implication, in the answer of said Washington Gr. Ward to plaintiff’s bill, although he specifically and expressly disputed many other items of said account of smaller'amounts and less importance. Nor was its correctness disputed by said Ward at said attempted settlement or objected to so tar as can be ascertained from the testimony of A. Hutton and the defendant Jacob Gr. Ward both of
The seventh exception, except as to the item of ten dollars, alleged to have been paid in October, 1865, should be sustained. The said item of ten dollars was disputed in the answer of Washington G. Ward and is proved to be incorrect by <T. G. Ward to whom it is alleged it was paid. Neither of the other items in said exception are expressly denied by said W. G Ward in his answer to plaintiff’s bill, nor does it appear that he objected to any of them when presented to him by Hutton for settlement in 1869, although other items on the account were then disputed.
The pffaintiff’s third, sixth and eighth exceptions must be overruled. The third, because the two hundred and fifty dollars therein referred to was denied and declared erroneous by W. G. Ward when presented to him by Hutton, and there is no evidence to sustain said item or controvert said denial.
The sixth is not well taken for the reasons hereinafter stated in considering the defendant’s exception. And the eighth is simply an assertion in regard to the evidence and is too general and indefinite to constitute a sufficient exception to a report. Sandy v. Randall, 20 W. Va. 244.
I am, therefore, of opinion, for the errors aforesaid, that the decree of December 6, 1879, should be reversed with costs to the appellant against the appellee, Jacob G. Ward, executor of Washington G. Ward, deceased, to be levied of the goods of his testator in his hands to be administered, and that the cause be remanded to the said circuit court of Han-dolph county with directions to said court to recommit the
Decree Reversed. Cause Remanded.