Re Estate of Powers

TAFT, J. By agreement of parties Mr, Veazey was appointed one of the referees, auditors and commissioners, and the cause was heard. After the hearing, he was appointed to an office of profit and trust under the authority of congress viz: that of interstate commerce commissioner. A person holding such an office cannot hold an executive nor judicial one under the laws of this state. Const, of Vt. s. 26. We do not decide whether an auditor, referee, or commissioner, is a judicial officer within the meaning of our constitution ; conceding that he is, his acts between third parties are valid. We have many cases holding that the acts of a de facto officer cannot be questioned in suits between third' parties. The claimant in this proceeding brought a suit in the Rut-land county court against the intestate, declaring in general assumpsit, and during its pendency in 1879, the.parties entered into a stipulation that referees should be appointed and should “ hear, consider, and decide all matters in difference between said parties, separate and partnership, and report thereon,” thus bringing in controversy under the submission, matters outside the scope of the action. The referees heard the matters submitted to them and on the 12th day of June, 1880, made report, which was considered at the September term, 1880, and recommitted for the purpose of having the referees pass upon a single item which the plaintiff claimed 404 had been omitted in the former investigation. After the September term, 1880, the intestate died; an administrator of his estate was appointed who entered to defend at the September term, 1881. The referees were afterwards called out and a hearing had on the 27th day of February, 1882. At this hearing “ the plaintiff (claimant herein) objected to any further proceedings in the case before 'said referees on account of the death of the defendant.” The objection was overruled, the matter was heard, the parties produced their evidence, and the referees awarded the plaintiff the sum of two hundred ninety-five seventy-one one hundredths dollars, and so reported on the sixth day of March, 1882. Subsequently, commissioners having been appointed upon the intestate estate of the defendant, the suit was discontinued by reason of the death of the defendant and the appointment of an administrator and commissioners upon his estate. The plaintiff, after the discontinuance of his suit, presented his claims to the commissioners. They are the same claims as those litigated before the referees and which were covered by the two reports. We hold that the stipulation for a reference and submission of matters not' embraced in the" suit nor within the scope of the action, and which depended for their validity upon the agreement of the parties, were in substance and effect submissions to arbitration, and the reports of the referees, awards, final and conclusive between the parties. By the first report it was found that nothing was due either party; the last shows two hundred ninety-five seventy-one one hundredths dollars due the claimant. The awards were not affected by the continuance and subsequent discontinuance of the action; there was nothing in the agreement for the reference that forbade a continuance of the action, or that made the validity of the awards dependent upon a discontinuance. The first submission was by the authority of the intestate. His death revoked any further proceedings under it. The proceedings which resulted in the second re 405 port were by the authority of the administrator, who could submit a controversy concerning the estate to arbitration. His power so to do is not questioned by the defendant estate, but it insists that the first report of the referees in the former action, by which nothing was found due the plaintiff, is binding upon him, but that the subsequent one in his favor is null and void, for the reason that the orders of court made after the filing of the first report were beyond its jurisdiction and of no effect. The reference and' report did not derive their validity from the orders of court, but from the agreement of the parties, and the agreement of the administrator was as efficacious to uphold the last report as that of the intestate was the first. The defendant estate insisted, against the protest of the claimant, upon proceeding before the referees ; the claimant has been put to the expense of a trial; the estate cannot now, after being cast in the suit, be permitted to say that the referees had no power to try the matters submitted to them. Both awards were valid and the claimant is entitled to recover the amount of the last one, unless some defence has intervened. That he may have an opportunity to do so the . Judgment is reversed and cause remanded.