Grayson v. Guild

Mr. Oh. J. Murray delivered the opinion of the Court. Mr. J. Wells concurred. [125] ' This was a Bill in Chancery for an account between partners. The case was referred to a referee under the Statute, who made a report, upon the face of which, as far as can be discovered, there is no error of law or fact, and if any, there are no exceptions taken before him to point them out, or to show that his decision was objected to. The Court below set aside the report, and granted a new trial, and from this order the plaintiff appeals. The respondents insist that motions for new trial are peculiarly addressed to the discretion of the Judge who tried the cause, and that the Supreme Court will not interfere, unless in case of a manifest abuse of that discretion. [125] * This is certainly correct when applied to cases tried by the Judge, but has never been recognized for the purpose of setting aside the report of a referee, or the award of an arbitrator, which in all essentials, we hold to be the same in effect. On the contrary, we have invariably held the opposite doctrine. In the case of Tyson v. Wells & Skinner, decided at the January Term, 1852, this Court, in their opinion, say: “In the case of Muldrow v. Norris, 2 Cal. 74, we held that under our system of practice, the Court might set aside awards for fraud, mistake or accident; and it makes no difference whether the mistake be one of fact or law. And in the case of a general finding, it appears to be well settled that Courts will not inquire into mistakes by evidence aliunde; and from the whole tenor of the opinion in that case, it may be regarded as the settled rule that the Court will not disturb the award of an arbitrator, or report of a referee, unless the • error which is complained of, whether it be of law or fact, appears on the face of the award.” And further: “It follows-that in the report of a referee, where neither the evidence is embodied with proper exceptions to show that he erred in fact, nor the rule of law pointed out by which he arrived at his conclusions, the Court to whom the report is made has no right to disturb it, and must hold it final and conclusive between the parties.” [126] In the case of Headley v. Reed, 2 Cal. 322, the Court said: “Upon the report of a referee under the statute, if it contains sufficient on which to base a judgment, it is the duty of the Court below to enter judgment in accordance with the report. After the rendition of the judgment, the Court may award a new trial and set aside the report, for any of the reasons which would impel a Court of competent jurisdiction to set aside the award of an arbitrator, and for no other,” Testing the case before us by the principles laid down in the cases we have cited, the Court below had no right to set aside the report, or to grant a new trial. It is shown, however, that the judgment or decree of the Court upon the report is clearly erroneous. Of this we have no doubt. The Court should have decreed, first, the payment to * the plaintiff, out of the [126] partnership funds in the hands of the receiver, of the amount found to be due him by the report, and afterwards a distribution of the assets, and a contingent judgment for the plaintiff against the defendant Guild alone, in the event of the insufficiency of the partnership fund to pay the amount found due to him. On account of this error in the judgment, if there had been an appeal from it, we would have found it necessary to reverse the judgment, and direct the Court below to enter a proper decree upon the report. As it is, we conceive that when a case of chancery is once before us, we have full power and jurisdiction for the purposes’ of equity, to correct the errors of the Court below in whatever shape, and by whatever party the appeal is brought up. It is, therefore, ordered and decreed, that the order setting aside the report and granting a new trial, be reversed. It is further ordered that the judgment be set aside, and the Court below is hereby directed to enter a decree in this case upon the report of the referee, and in conformity with the views indicated in this opinion.