Union Pacific Railroad v. Wilson

By the Court, Fisher, C. J.: This was an action founded on several causes of action, to wit: 1. For work and labor, care and diligence of said plaintiff, now defendant in error, performed and bestowed about the business of said defendant, now plaintiff in error, at his request, as boarding-house keeper, and also for divers goods, wares and merchandise, and other necessary things, by said plaintiff found and provided, by said defendant’s request. 2. Said plaintiff below claimed one thousand one hundred and twenty-five dollars, for wages or salary for services performed as clerk for defendant, now plaintiff in error. On the thirteenth of February, A. d. 1875, the defendant below filed his answer to plaintiff’s petition, denying; generally and specially the allegations of the said petition, and for a second defense plead payment in full, and for a third defense pleads the bar of the statutes of limitations. On the said thirteenth of February, 1875, by agreement of parties, A. G. Swain was appointed referee, to take and report his findings of facts to the court. On the nineteenth of March, 1875, the referee reported to the court the evidence taken, [310] and his findings thereon, and the case came on to be heard on the defendant’s (below) motion to set aside the report of the referee and grant a new trial. On the twenty-seventh of March, 1875, said motion was sustained, and it was further ordered by the court that the cause be referred back to the said referee, A. G. Swain, to report the facts in the case, with all the evidence, and that he report, definitely and superficially, all the issues involved in the case. The defendant below then and there objected and excepted to that portion of order of the court referring the cause back to A. G. Swain for a new trial. The said referee having once tried the cause, and having formed and expressed opinions therein, was an improper person for referee upon a second trial. Upon this objection and exception the counsel for defendant below cites: Seney’s Code, sec. 282; Maxwell v. Stewart, 21 Wallace, 71; Johnson v. Wallace, 7 Ohio (part 2), 62; Nash on Plead. and Prac. 1016; Garcia v. Sheldon, 3 Barb. 232; Nash on Plead, and Prac. 1021-1023. On the twenty-sixth of April, 1875, the said referee filed a second report, and the defendant moved to set it aside and for a new trial. The court, therefore, ordered the case back to A. G. Swain, the referee heretofore appointed in the case. On the twenty-second of May, 1875, the said referee having made out and filed a third report in the case, the defendant moved, for various reasons, to vacate the third report and grant a new trial. On the twenty-sixth of May the court overruled said motion, and the third report was in all things affirmed, to which defendant excepted. On the twenty-eighth of June, 1875, judgment was rendered by the court for, defendant in error, and against plaintiff in error, for one thousand eight hundred and thirty-eight dollars and eighty-six cents, the amount found due by the referee, and two hundred and sixteen dollars and ten cents costs of suit. The exceptions taken to the action of the court in sending this case to a referee three different times, might be of sufficient importance to remand this case for a new trial, if the [311] fact did not appear that it was in the first place referred by the consent of the parties, and that the second and third reference Avas merely done by the court for the correction of errors. But every reference only seemed to increase errors on the part of the referee. And the error of the court consisted in permitting the third report of the referee to be filed and judgment entered on it. Without, therefore, going over the many errors pointed out in the brief of the counsel for the plaintiff in error, none of which is attempted to be met by the counsel for the defendant in error, we think it sufficient to say that the case ought to be sent back for trial, either by a jury, the court, or a referee who will render findings responsive to the issues involved in the case, which surely has not been done by the referee who has put his findings on record in this cause. Judgment reversed and trial de novo awarded.