Johnson v. Gallegos

MILLS, C. J. TraAi» ractice-a^dmonafflndl court. by the It appears from the record before us, that this case was referred to a master who reported the evidence and findings both of law and fact to the court. To these findings the appellants herein filed exceptions, and the court, after hearing counsel and sustaining the master’s report, of his own motion made supplemental findings both of law an<^ ^aci:' ^ese findings the appellants excepted, and in deciding this case we will first consider the fifth assignment of error which relates to this matter. Such assignment alleges that the district court erred: “In making of its own motion supplemental findings both of law and fact in favor of complainants and appellees, when such complainants and appellees had filed no objection to the master’s report before said master, nor exceptions to the said report before the court.” Had the court the right to make such supplemental findings? “A master in chancery is an officer appointed by the court to assist it in various proceedings incidental to the progress of a cause before it. * * * The information which he may communicate by his findings in,such cases, upon the evidence presented to him, is merely advisory to the court, which it may accept and act upon or disregard in whole or in part, according to its own judgment of the weight of the evidence.” Kimberly v. Arms, 129 U. S. 512; Beasy v. Gallagher, 20 Wal. 670, 680; Quinby v. Conlan, 104 U. S. 424; Bousch v. Graff, 133 U. S. 697. It is not, however, usual for the court to reject the report of a master and his findings upon the case re- , ferred to him, unless exceptions are taken and brought to its attention, and upon examination, the findings are found to be unsupported. Medsker v. Bonebruck, 108 U. S. 66; Tighlman v. Proctor, 125 U. S. 136: Callaghan v. Myers, 128 U. S. 617; First National Bank v. McClellan, 58 Pacific Reporter 347. In the case at bar, the court does not reject the report of the master but confirms it. It does not reject any findings made by the master, but only adds others to those found by him. In our opinion, if the court deems it to be in the interest of justice, it has the inherent power to make supplemental and additional findings to those found by its own officer, if such findings are supported by the evidence, so as to clear up any matter, or to set out more fully any circumstances which it deems to be necessary for the proper determination of the cause. To hold that a court can not correct, by means of supplemental findings, unless exceptions are filed, any errors or omissions which are in the report of a master, is not, in our opinion the law, nor have we been able, after an extended research, to find a single authority which denies to the court such power. We therefore hold that no error was committed by the court in making the supplemental findings complained of. BepI/EYIN — alternative judgment— failure to elect — effect thereof. The sole remaining point to be decided, to determine this ■case, is as to the construction to be given to the judgments entered in the replevin suits. They are in the alternative, and the record does not disclose that at the time they were entered the appellants herein elected to exercise any right they might have as to whether they would take back the property, or its value. In fact, so far as appears, double the number of cattle re-plevied from the sheriff, and three more horses than were replevied, were redelivered to him, before he took out executions in the replevin cases. The judgments upon which the executions were issued is for the return of the property, or, in default thereof, for its value. The defendants had the right to discharge the judgments by a return of the property, and they can only be compelled to pay its value in cases where a delivery is not made within a reasonable time. Wells on Replevin, par. 778; 2 Freeman on Execution, par. 468; Elehpare v. Aguirre, 91 Cal. 288; Meads, Seaman & Co. v. Lasar, 92 Cal. 221; Carson v. Applegarth, 6 Nev. 187; Marks v. Willis, 58 Pac. 526. The judgments in the replevin cases provided that the cattle and horses were to be returned to. the sheriff of San Miguel county by the plaintiffs in the replevin suits by June 30, 1888, at Las Vegas in said county, and that in default of such return then the sheriff had judgment for the value of the property. It is proved that the sheriff waived the right to a return by June 30, 1888, and agreed to extend the time for such delivery until a roundup was had, and that on or about September 1, 1888, more than double the number of cattle and three more horses than those which had been replevied, were delivered to the sheriff by turning the same into his corral at Las Vegas. The evidence also shows, that executions in the replevin suits were not taken out until September 7, 1888, and that they were not delivered to the sheriff of San Miguel county until the tenth of the same month, which was after the livestock had been returned to him, consequently he did not levy the same until the property in question was in his possession. The redelivery of the personalty replevied before levy of execution where an alternative judgment is rendered, satisfies such judgment. Marks v. Willis (Oregon), 58 Pacific 526. It is immaterial whether the property was returned to the sheriff by the plaintiff in the replevin cases or by their sureties. The sureties have a right to make such return if they see fit, and thus discharge their obligation. Wells on Replevin, par. 429; Kimmel v. Kint, 2 Watts 432. We see no error in the judgment complained of, and the same is therefore affirmed. McFie, Parker, Crumpacker and Leland, JJ., concur.