Dinsmore v. Smith

By the Court, PAINE, J. This suit was referred by the order of the circuit court, to be tried by the judge of that court, as a referee. A trial was had -before him, and he filed his report and finding in favor of the plaintiff, and, no exceptions being taken, the report was afterwards confirmed by the court, and judgment entered accordingly. After judgment, the defendant filed exceptions to the report of the referee, and then appealed to this court. If this practice is correct, those exceptions will be reviewed here for the first time. This cannot be done. This court does not review the action of referees, but the action of the court, and the question of practice must be determined just as it would if the referee had been some person other than the judge. In that case, if the party against whom the referee decided took no exceptions, made no motion to the court to review, modify or set aside the report, but allowed it to be confirmed and judgment entered without objection, it could hardly be claimed that he could afterwards except to the report, and, by appealing to this court, have those exceptions passed on here. It may be said that it would 'be an idle ceremony to ask the circuit judge to review his own report as'referee. But however that may be, it is a ceremony that must be gone through with, if it is desired that this court should review it. For we review only the action of the court, and it is no error for the court to enter judgment according to [23] tbe report of tbe referee, if no objection is taken, provided tbe finding of tbe referee on its face warrants tbe judgment. But it is claimed that tbe order of reference is void. If this can be assumed on tbe face of tbe record we should probably be bound to reverse tbe judgment, as it rests upon tbe finding of tbe referee, and if that is void it would be like a judgment upon a void verdict. If tbe order is void, it must be either because it is impossible for tbe circuit judge to act as referee under any circumstances, or, if that is not so, then because be was not properly appointed here. We have come to tbe conclusion that we cannot say that it is legally impossible for a circuit judge to act as referee. It has always been a common practice for parties to stipulate that cases pending might be tried before the judge at chambers, with like effect as though tried in court. There seems to be no reasonable objection to such a practice, and it has been recognized as valid by this court. Beach vs. Beckwith, 13 Wis., 21. Tbe statute allows all issues to be referred on tbe written consent of tbe parties, and they may agree upon “a suitable person ” to act as referee. R. S., ch. 132, secs. 22, 24. Now if tbe parties choose to stipulate that the judge may actas referee, it is in substance tbe same as stipulating that he may try tbe case at chambers. And although there can be no doubt that tbe statute contemplates that some other person shall be chosen, and though the judge could never appoint himself where the parties did not agree, yet if they choose expressly to stipulate that he may so act, we do not feel authorized to say that it is legally so impossible, that we can pronounce the judgment void by reason of it. These remarks have been made upon the assumption that the judge would take no fees for services as referee. It appears that in this case the parties stipulated that he should have nine dollars per day, and that he received fees for several days’ services at that rate. I have had very great doubt as to what should say upon the subject, and as to the effect it should have [24] upon the validity of this judgment. But I have finally come to the conclusion that whatever opinion I may have upon the propriety of such a practice, it is not a matter which this court can take cognizance of unless some proper motion should be made to strike out that amount from the taxed costs. It seems to me it is just the same as it would be if it appeared from the record that' the parties had stipulated to pay the judge certain fees for trying a case in court. Such a practice would of course be a clear violation of his duty. But it would really have no bearing one way or the other upon the merits of the judgment, except so far as the sum paid was included in the costs. And we have repeatedly decided that we would not interfere with the taxation of costs unless a motion was first made to the court to correct it. Could we then, in such a case, where no such motion was made, and though satisfied that the judgment was correct in every other particular, reverse it merely to show our disapprobation of the practice? I think not. All we could do would be to strike out'the illegal costs when the question was properly presented, and to decide whether there was any other error in the judgment. Beyond that we could take no cognizance of anything the judge might have done, whether properly or improperly. And the same is true as the case now stands. If it was improper for the judge to take.fees as referee, in view of the constitutional provision forbidding judges to. take any fees for services, beyond their salary, it was an impropriety that has no bearing on the merits of the judgment, except so far as those fees may have been taxed as costs. If a proper objection had been made, we should be obliged to determine whether such costs were legal, but beyond that I do not see that we can take cognizance of it. The question then remains, whether we can hold the reference void because the record fails to show the written consent of the parties that the case should be referred to the judge ? Assuming that the record is entirely silent on the question [25] whether there was such consent, I still think we cannot reverse the judgment for that reason. And here again-the question must be determined as it would be if the referee had been another person. The record shows an order of reference. If it had been to another person, and the parties had appeared and gone to trial before the referee without objection, allowed judgment to be entered on motion on his report, and then appealed from the judgment on other grounds, without once claiming that the case had not been properly referred, could we reverse the judgment merely because the record failed to show a written consent to the reference ? I think not. Such a position could only be sustained upon the theory that such written consent was an essential part of the record, like a verdict or complaint, without which the judgment could not stand. But it cannot be so regarded. It is a mere paper on which the judge is authorized to make a certain order in a pending case, of which he has already acquired jurisdiction. The statute does not require the written consent to be filed, nor that it be put into the judgment roll. Where the record, therefore, shows an order of reference, it must, upon the familiar rule that the action of superior courts is presumed to be regular until the contrary is shown, be presumed to have been based upon the necessary consent. The Chief Justice holds that this presumption cannot be indulged in here, for the reason that the order of reference itself shows that it was based not on a written consent, but on a motion for continuance. It is true that the order does recite that a motion for continuance was made upon affidavit, and that after hearing counsel, the judge ordered that the cause be referred to himself. And I admit that if this can be fairly construed as implying that the order of reference was based upon a motion for continuance, there would perhaps be no ground for presumption that it was based upon anything else. For I do not believe that presumptions can be indulged in against tíre récord, or that where the record states that an order or proceeding was based [26] upon one thing, it can be presumed to have been based upon another. But I cannot so construe this order. It would be too incongruous a proceeding, to warrant the belief that the judge intended to say by this recital, that he grounded the order of reference on the motion to continue. I can only suppose that such a motion was made, and that while it was being considered, the parties, by the proper consent, substituted a reference for the relief asked upon the motion, and thus the order was drawn as it is. But although the record contains no written consent to the reference, there is a writing which shows that the parties did consent. It is the stipulation before referred to, providing that the judge should be entitled to nine dollars per day for his services in trying the case as-referee. This, though not made at the time of the making of the order, shows'that the parties did consent, and sustains the presumption that such consent was properly manifested, as does the entire absence of any objection that the reference was not properly made. Mere appearance before the referee and submitting the case without objection has been held to waive the necessity of a written consent, though the party afterwards objected. McShane vs. Gray et al., 13 Iowa, 504. But whether that should be so or not, there seems to be no doubt that the necessary consent must be presumed upon the facts which appear in this record. The judgment must be affirmed. Dixon,-C. J., dissented.