LeBaron v. Overstreet

Carter, J.: The fifth assignment of error requires us to determine whether the referee erred in overruling defendant’s motion to set aside the judgment and for a new-trial. It is insisted by defendant in error that there is no statute requiring a referee to notify the parties-of the date fixed by him for the hearing of a cause633 pending before him. It is true that the statute regulating proceedings before referees (secs. 1230 et seq. Rev. Stat.) does not in express terms require a notice' of this character to be given, bu't we think it is necessarily implied that a party shall have notice of the-day fixed for trial by the referee, where he fixes it in-the absence of such party, under that provision of sub-section 3 of sec. 1231 Revised Statutes, which reads:“He may fix the day for the trial, and may adjourn the trial for cause shown.” In the very nature of' things, a party ought not, without express legislative-sanction, to be required to attend a referee — who holds no regular stated sittings except in pursuance of his. previous appointments — from day to day, for the purpose of ascertaining when and where a case referred to him will be heard. A requirement of this character intrenches too nearly upon that fundamental principle which forbids condemnation without notice, to-be tolerated in judicial proceedings, merely because' the statute omits to declare that notice must be given. It may be that the Circuit Court having acquired jurisdiction of the subject-matter of this suit and of the person of the defendant by the service upon him of the original summons, and having regularly transferred that jurisdiction to the referee in pursuance of our Constitution and laws, ' that the referee’s judgment, though rendered at a hearing had without notice to defendant, is not absolutely void. As to that we are not required to express an opinion at this time. We have no doubt, however, that such a proceeding-is very irregular, and calculated to deprive the defendant of substantial rights, and should, therefore,, address itself to a court with peculiar force upon a timely and proper application for relief. In this case634 the referee did issue a notice to defendant, and on the day of hearing he found that this notice had been duly ■served. The defendant complains of this very finding as being without evidence to support it. The referee stated that his mind was not free from doubt upon the subject of notice, and that he denied the motion upon the authority of his former finding that notice had been given. This finding was upon an ex arte hearing, and there is no return of any officer, or other proof, showing service of the notice; nor is it anywhere shown that a return of service was ever made. The referee concluded that there must have been some return, from the fact that he had previously found that service had been made, and because he remembered declining to proceed until it was affirmatively shown that notice had been given. It may be that upon a collateral proceeding his finding in ^his respect would be conclusively presumed to have been based upon sufficient evidence, but that presumption can not, in view of the facts disclosed by this record, prevail in this proceeding, which is an appellate proceeding to review that very decision. A notice purporting to be the original, and a copy thereof, each in the handwriting of the referee were produced by the defendant, and upon neither was there a return of service. Whether this paper, purporting to be the original, was handed to the defendant at the time of the service of the copy, or was taken by defendant from the files of the case papers, the fact remains, that it bore no evidence of having’ been executed. The referee does not deny that it was the original; nor does he intimate that any notice of the hearing was ever lost from the files. He admits that the record contains no return of service, his findings do not state 635 when or by whom service was made, and the record before us, though certified to be a true copy of all the proceedings, fails to exhibit any original notice of hearing, or any return of service. Upon this state of facts we think the defendant’s sworn version of the service of the notice must prevail, viz: that it was served an hour and a half after the hour fixed for the hearing, and it can not be pretended that the notice afforded thereby was reasonable. It is insisted, however, that the defendant was guilty of laches in failing to respond immediately upon service of the notice, for, by doing so, he could have informed himself that the hearing had been postponed; and that his application to open the judgment was without merit, inasmuch as he failed to state to-the court that he had a meritorious defense to offer upon another trial. We think the defendant would have shown more respect to the process of the referee-by appearing before him immediately and requesting a postponement of the trial, but he had a legal right to ignore the notice, and suffer whatever consequences might legally flow from his disregard of it. And as the hour named in the notice for defendant’s appearance had passed, prior to its service, the defendant-had a right to regard the service of a notice functusofficio, as no notice at all, and to decline to appear in obedience to its supposed command. The notice having been served upon him after the hour fixed for the-hearing, he had a right to presume that the officer-would so return, and that the plaintiff would not further persist in the hearing in the face of this irregular service. The first notice the defendant is shown to have had that plaintiff persisted in acting upon such irregular service was nearly three years thereaf 636 ter, when notified that the referee had filed his findings •and judgment, and he thereupon, within the time limited by the statute, moved to set aside the judgment because of the error of the referee in proceeding with •an ex parte hearing in the absence of notice to him. Under these circumstances we think his application was seasonably made. Fletcher vs. Wells, 6 Taunt. 191, S. C. 1 Marsh. C. P. 550; Dand vs. Barnes, 6 Taunt. 5, S. C. 1 Marsh. C. P. 403. We do not think it was necessary for the defendant to have made a •showing of merits in defense, in order to entitle him to set aside the j udgment in this case. He had a rigli t •to be present at the hearing, even if he intended 1o •offer no testimony whatever, inasmuch as he had filed the general issue, which put the plaintiff to proof of his cause of action. The plaintiff’s claim was an unliquidated demand, upon open account, and the defendant had a right to be present and cross-examine the plaintiff and his witnesses upon the items of this account. Even if he did not intend to appear at all, he had a right to insist upon notice of the hearing, unless he waived such notice. We think the defendant should have had notice of the trial, and that the failure to give it deprived him of a substantial right (Ballard vs. Lippman, 32 Fla. 481, 14 South. Rep. 154); and the judgment is, therefore reversed and a new trial granted.