Colburn v. Long

OPINION OF THE COURT BY PERRY, J. This was a suit in equity for an accounting, instituted by the present defendant-in-error against the present plaintiff-in-error. [429] Upon stipulation of the parties an interlocutory decree wa.s made ordering that the cause be referred to “a referee to take evidence of and upon and report to the court the transactions and dealings of the parties hereto” concerning the moneys and other property mentioned in the bill of complaint. Hearings were had before the referee on August 21, 25, 28 and 30, 1911, and on June 13, 1912. After August 30, 1911, further hearing was delayed from time to time owing to other engagements of counsel for the respective parties, one of the continuances, for several months, being due to the absence of the attorney for the appellant from the Territory. The parties finally compromised their differences and consented to the entry of a decree declaring -the agreed amount of the respondent’s indebtedness and ordering that “respondent pay to the said complainant” the sum mentioned “with his and all costs herein named and hereafter to be taxed”; and a final decree was entered accordingly. At the hearing before the referee notes of all of the testimony were taken by a stenographer, the parties from day to day advancing each one-half of the stenographer’s compensation for his attendance under an agreement that the taxation of the amounts of these payments await the final result of the suit. Several months after the hearing of August 30, 1911, the referee, at the suggestion of counsel for the complainant and without the assent of counsel for respondent, ordered a transcript of the stenographer’s notes of the testimony for his own use in the determination of the issues involved as well as for the use of counsel in the further presentation of the case. Subsequently the sum of $136.80 for “stenographer’s cost of transcript” was taxed against the respondent. The allowance of the item is now assigned as error. The power of our courts of equity in proper cases, as, for example, in suits for an accounting, to refer issues to a master or referee is undoubted; and, although there is no provision by statute or by rule for the compensation of referees or for allowances for expenditures necessarily and reasonably incurred [430] by them in tbe performance of tbeir duties under tbe orders of reference, it is equally clear tbat sucb a reference carries witb it tbe implication tbat tbe master will be entitled to compensation for bis services and to reimbursement for expenditures of tbe nature mentioned. In tbe case at bar.tbe parties, in consenting to tbe reference, must be deemed to bave bad tbis in contemplation. It could not bave been tbeir expectation tbat tbe master would contribute gratuitously for tbeir benefit bis services or tbe amount of bis necessary and reasonable expenditures. J. LigMfoot for plaintiff in error. E. G. Peters for defendant in error. Upon tbe motion for taxation of costs evidence was introduced tending to show tbe circumstances under wbicb tbe transcript was ordered by tbe master and also tbe reasonableness of tbe stenographer’s charge. ’ It appears, by inference at least, from tbe decision of tbe trial judge tbat tbe latter found that the master in the exercise of a reasonable discretion deemed tbe transcript necessary to tbe proper performance of bis duties and tbat tbe charge for tbe transcript was a reasonable one. Without reciting tbe evidence, it will suffice to say tbat there was evidence sufficient to support each of' tbe findings. “There shall be no reversal on error of any finding depending on tbe credibility of witnesses or tbe weight of evidence.” R. L., §1812. Tbe order taxing costs is affirmed.