Lawrence v. Fowler

By the court, B. Darwin Smith, Justice. These cases were brought before the court on a previous occasion, and the question was mooted whether they could be reviewed in their present shape, and it was considered without very careful examination that such reveiw could be had. They are now again brought on for argument, and we have been necessarily called upon in attempting to dispose of them upon their merits to reconsider that question. The actions are both suits in equity in the nature of cross actions, and both involve an accounting between the parties. They were referred to the same referee, and heard together as one cause, the referee taking the testimony offered, and applying it to the issues made by the pleadings. In one case he reports that the parties were joint tenants in the purchase of two lots of land, and that one party has advanced more than the other towards its purchase, and has stated an account between the parties, made a decree for partition, and the appointment of commissioners to make such partition. In the other suit he has stated the account, and found due'to Gallup, the plaintiff’s intestate in such suit, the sum of $1,250, and has made a decree accordingly. In looking into the cases with some care, we cannot see upon what principle we can review them. In the secondly entitled suit, there might be a review, as final judgment has been entered, but there are no separate findings and no available exceptions. In the first entitled action the commissioners for partition have not been appointed ; partition has not been made, and final judgment could not be properly entered. Aside from this question, and so far as the examination of the cases upon the merits is concerned, neither [414] case is presented to us in a proper shape for review; there is annexed to the separate report of the referee a general exception to each and every finding of the referee upon questions of fact, and to each and every conclusion of said referee upon questions of law. Such an exception is not available to raise any distinct question. It would completely nullify the rule of requiring specific exceptions, if one so general could be allowed. It points out no errors, and.does not call the attention of the court, as the office of an exception is, to some specific point of objection. In suits in equity we have before held in several cases that where accounts were taken by the referee, that exceptions to his report must be as specific as was required under the old chancery practice in stating an account before a master and that the old chancery practice is still in force in respect to all such cases. (Ketchurn agt. Clark, 22 Barb., 320.) In reviewing the judgments rendered by referees, in all cases, this court acts as an appellate court and can only review the judgment upon a case including the findings of the referee upon the facts, and .his conclusions of law with the exceptions thereto. (Code, §§268 and 272; and see Rogers agt. Beard, 20 How., 98 and 282.) There is an obvious distinction between cases in law and suits in equity, which must be considered in preparing a case for a review. In suits at law the referee should state the facts found by him as upon a special verdict precisely as if he were executing a reference by the court to ascertain and report the facts of the case. To this statement of facts no exceptions are' required. The referee then adds his conclusion of law upon such facts so found or stated, and his duty is performed. To these conclusions of law specific exceptions must be taken, as much só as if such decision had been made on the trial of the cause in its progress, or in the charge of the judge to the jury. In reviewing the judgment of the referee upon the facts thus stated, and the conclusions thus found, the court reviews the imping of the referee upon the facts [415] precisely as it examines the evidence on the trial before a jury, and upon the same principles, and the case should be made up in this court precisely as required by the court of appeals, and a review here can be had only upon a case thus made up. (Rogers agt. Beard, supra.) But in respect to suits in equity, while the case must be the same, and must contain the findings and exceptions, the exceptions must, so far as they relate to matters of account and detail, be specific, pointing to the particular error claimed in the account as specific, as was required to a master's report under the former practice in chancery. There is a difficulty in trying equity cases before a referee under the • Code, arising out of the intrinsic difference between legal and equitable actions. In legal actions the issues are single, and can easily be tried and disposed of hy a referee as by a jury. But equitable actions are essentially different, and I think it is a mistake in the Code to require them to be tried before a referee, and before a single judge in the same way with legal actions. In actions between partners or joint tenants, as in this case, and also in actions of partition, and in various other actions where an accounting is necessary, the trial is necessarily in some degree a double one. First, the court or referee is to try the question of the liability of the defendant, to account and make an interlocutory decision or order, and then the account is to be subsequently taken before final judgment can be rendered. Much embarrassment in these cases would, I think, be obviated by a reference under section 270, of particular issues of fact involving the merits, instead of referring the whole issue to the referee. In the former case the report of the referee would have the force and effect of a special verdict, and the court at special term, would render the judgment and make the requisite order to carry into effect the interlocutory order or decree, based upon the finding of the referee. The difficulty in this case is that the whole issue was referred to the referee; we must, therefore, dispose of the whole issue, and 'his [416] decision will stand as the decision of the court. (§2'72.) In either case no appeal lies until final judgment. (§ 348.) The appeal is from a judgment. No appeal is allowed from an interlocutory decree, it being the policy of the Code to allow only one appeal upon the merits in any action. Swarthout agt. Curtis, 4 Com., 416 ; Lawrence agt. Farmers’ Loan Co., 15 How., 57.) Upon the basis of the report of the referee in the case of Lawrence agt. Gallup, the court at special term can appoint commissioners to make partition, but upon the coming in of the report of the commissioners, the referee will necessarily have to make a final decree confirming the same, and dispose of the question of costs, and then final judgment can be entered up. This must be done before there can be any appeal to this court authorizing us to review any decision of the referee. In the suit of Lawrence agt. Fowler, therefore, there is nothing properly before us for review, and the appeal in that case should be dismissed. In the case of^Fowler, executor, fyc. agt. Lawrence, final judgment having been rendered, but no proper exceptions having been taken to the decisions and findings of the referee, we could not do otherwise than affirm the judgment. Appeal dismissed in Lawrence agt. Fowler, executor. Judgment affirmed in Fowler, executor, agt. Lawrence.