Hills v. Passage

[295] The following opinion was filed at tbe June term, 1866 : Downer, J. At the January term, 1865, of the circuit court, a stipulation, signed by the attorneys of the parties, was filed, by which they stipulated “ that the case be referred to Hon. David Noggle, referee to bear, try and determine; and it is also agreed that should said referee’s decision be made after the March term and before the July term of this court, the judgment on such report may be entered as of the March term of the court; and it is further agreed that the demurrer in said action be first decided by said referee, with the same effect as though decided by the court, and that thereupon pleadings be made in accordance with such decision, and that the parties then proceed to trial.” And on filing the stipulation, the court (Hon. David Noggle being the judge) “ ordered that this action and all the issues therein be referred to Hon. David Noggle, as referee herein to bear, try and determine the same pursuant to said stipulation.” On the third day of August, 1865, when the trial before the referee came on, it was further stipulated that the fees of the referee be fixed at nine dollars per day; and these fees were paid and taxed as costs. It requires but a very slight examination of the statute authorizing and regulating references of actions, to come to the conclusion that a referee or referees must be a person or persons other than the judge of the court to whom the report of the referee is to be made. Tbe statute clearly contemplates that the action of the court in confirming or setting aside the report should not be by the same mind as that which acted in mating it. As a statutory reference, therefore, the reference- in this action is void. In Dinsmore v. Smith, 17 Wis., 20, the court sustained a similar reference on the ground that it was equivalent to a stipulation that the cause might be tried before the judge at chambers. But it is a well settled principle, that to give any effect to a trial by stipulation at chambers, the stipulation must con [296] tain provision for the rendition of judgment on the finding of the judge in open court. In the case of Beach v. Beckwith, 13 Wis., 21, cited by the court to sustain their opinion in Dinsmore v. Smith, judgment was rendered pursuant to such agreement in the stipulation. But there was no such authority to enter judgment in the latter case; and the court seems to have overlooked that important requisite. A reference of an action not according to statute, and without a stipulation continuing the cause in court and for judgment on the report of the referee, is the same as a submission to arbitrators, and operates as a discontinuance of the action. Camp v. Root, 18 Johns., 22; Green v. Patchin, 13 Wend., 294, and authorities there cited. But if there is a stipulation for judgment on the report, that is considered equivalent to a plea of confession; and the judgment, when entered pursuant to the stipulation, may be valid. The judgment in such case, as well as in cases where the parties agree that the judge at chambers shall try the cause, and judgment be entered on bis decision, rests upon the express agreement of the parties. Yates v. Russell, 17 Johns., 461; 18 Johns., 22; Ex parte Wright, 6 Cow., 399; Dederick’s adm’r v. Richley, 19 Wend., 108. Did the stipulation to refer authorize the court to enter the judgment on the report? It was therein agreed that if the referee’s decision should be made after the March and before the July term of the court, judgment might be entered as of the March term. The report was not made before the July term. Such agreements are construed with great strictness, and the right to enter judgment cannot be taken by implication. 19 Wend., 108, and authorities there cited. And the reason is, that the court would have no right to modify the report or review the testimony, but only to enter judgment according to the terms of the agreement, which should be clear and express. The report not having been made before the July term of the court, the reference operates as a discontinuance of the cause. [297] We know of no law authorizing a judge, even by consent of parties, to refer a cause to himself as referee, with a stipulation for and followed by an actual payment of fees to him under color of services as referee. We think such practice is against the policy of the law. If the services are to be regarded as rendered by him as a judge at chambers, as intimated in Dins-more v. Smith, the constitution prohibits his receiving fees for such services. By the Court. — The judgment of the circuit court is reversed, and cause remanded.