Wall v. Knapp

Opinion, Mr. Justice Stebbett : The subject of complaint, in the first three specifications, is that no notice was given either of the completion or filing of the referee’s report, or the entry of judgment thereon and that defendants were thereby deprived of the opportunity of excepting thereto before it was filed, or afterwards, within the time required by the act of April 6, 1869, and supplement thereto, under which the referee acted. It appears that May 18, 1889, was fixed for hearing before the referee, and notice thereof was accepted by attorneys for both parties; but it does not appear, by the record or otherwise, when the hearing was concluded, or that notice for any purpose was thereafter given. It is contended by the appellee that no notice is required by the act; that, upon completion of the referee’s report, it maybe forthwith filed, and judgment entered thereon, — as appears to have been done in this case, — without affording either party an opportunity of inspecting it, and applying to the referee for the [57] correction of errors, if any there be, in his findings of fact or conclusions of law, etc. It is true the act does not, in express terms, direct that notice shall be given; but its provisions contemplate that time and opportunity shall be afforded for examination of the report, and correction of such errors as are liable to occur during the course of trial, and making up a report thereof, and for excepting to the latter as revised. The second section of the act says : “ The trial by the referee shall be conducted in the same manner as a trial by the court with a jury, and on notice of the time and place to be fixed by the referee.” Section 3 declares : “ The referee shall have the same power to grant adjournments, and to allow amendments to any pleadings, as the court,” etc. The fourth section provides that the “referee shall state the facts found and the conclusions of law separately, and his decision shall be given and may be excepted to and reviewed in like manner as though tried by the court with a jury, but not otherwise ; and the said referee may in like manner as the court settle a case or exceptions on appeal or writ of error to the Supreme Court.” The next section declares “ the report of the said referee upon the whole issue shall stand as the decision of the court, and judgment shall be entered in the same manner as if the action had been tried by the court before a jury,” etc. It is very evident, from the provisions above quoted, that the dual position of judge and jury, occupied by the referee, makes it his duty, as judge, to conduct the trial, decide all questions of law that arise during the course of the trial, and, as a jury, to determine all material questions of fact that are raised by the evidence. It is further his duty to prepare an accurate report, setting forth separately and distinctly each finding of fact and his conclusions of law; and, generally, to see that the course of the trial, from its inception to the filing of his report in the prothonotary’s office and entry of judgment thereon, conforms as nearly as may be to trial “ by the court before a jury.” This is clearly not done when the referee, immediately on completion of his report, files the same, and causes judgment to be entered thereon without such notice, by adjournments to a day certain or otherwise, as will afford the parties an opportunity for inspection of the report, filing exceptions, [58] and applying for the correction of errors either in the findings of fact or conclusions of law. As in the case of a trial by jury, the unsuccessful party has a right to apply to the court for the correction of alleged errors, etc., by motion in arrest of judgment, or for a new trial, so either party before a referee has a right to examine the report, and be heard on an application for similar relief. Indeed, it is even more necessary in a reference, under the act in question, than in a case tried by jury in court. The findings of fact by the referee constitute the case upon which final judgment must be entered, and hence it is all important that they should be not only accurate, but also full and complete. They take the place of a special verdict of a jury, with this important difference, that the referee has full power and authority to modify or correct his findings of fact, if on further examination he deems it necessary. The practice evidently contemplated by the act of 1869 is substantially the same as that required by our equity rules, and now generally observed in all properly conducted audits, viz., that the auditor shall give the several parties ten days’ notice that his report is ready for filing, so that they have an opportunity of excepting to it before him. If exceptions are filed, he reconsiders, and, if necessary, amends his report before filing it, and no exceptions are noticed in court that are not filed before him. Thus no report can be set aside except on points to which the auditor’s attention has been directed: Mengas’s App., 19 Pa. 221, 223. It is also in harmony with the practice that is now expressly required by the supplement of May 4, 1889, to the general referee act of 1874, P. L. 80. We are of opinion that, upon a proper construction of the act of 1869, the learned referee erred in not notifying the defendants that his report was ready for filing, etc. If it were even doubtful, as was said by Justice Sharswood in Thornton v. Insurance Co., 71 Pa. 234, “ it is our duty to mould the course of proceeding under the special acts providing for the reference of civil cases, so as most nearly to conform to the common law, and to be regulated by principles and rules most familiar to all.” In thus reversing the judgment for want of notice to the parties, it is unnecessary to refer to other specifications bearing on the supposed merits of the defence, further than to say that [59] some of the findings of fact are not as full and specific as they should be, but that can be remedied in the revised report. The case, however, is one that ought to be settled by the parties themselves without further litigation. Judgment reversed, and cause remanded for further proceedings before the referee in accordance with the foregoing opinion.