Stone v. Merrill

Cole, J. The learned counsel for the appellant insists that the circuit court erred in confirming the report of Mr. Bennett, and directing judgment thereon, for the reason that the cause had never been referred to him to try and determine. The counsel claims that it was absolutely essential to the regularity of the subsequent proceedings before the referee, that the court in which the action was pending should make and enter an order, founded on the consent of parties, directing a reference and appointing the referee; and that, as the record fails to show any such order or consent, Mr. Bennett had no power to act in the matter as referee. This position of counsel seems to us correct, and must work a reversal of the judgment. It is not claimed that the record shows any consent of the parties to a reference, or any order of reference made by the court. [76] That the statute contemplates and requires the court to mate and enter such an order on written consent of parties, seems too plain for argument. Taj. Stats., ch. 132, § 25. It is the order which confers upon the referee power to administer oaths, examine witnesses, hear and determine the issues; it is therefore indispensable that it should be made. It is obvious that it cannot rest in parol, any more than any other decision of the court, but should in some way appear in the record, or entries made in the minutes of the court. It will be seen that the statute makes the written consent of, parties to the reference essential, as a basis of the order of the court (Mead v. Walker, 17 Wis., 189; Hills v. Passage, 21 id., 294); but doubtless oral consent given in open court, and entered upon its minutes, wrould answer the requirements of the statute. The learned counsel for the respondent insisted that this was a case where the court was authorized to make a compulsory reference, and therefore no written consent was necessary. Conceding this position to be correct, still the difficulty remains, that the record shows no order. There must be an order of court in case of compulsory reference. But the same counsel further claimed that the omission to obtain an order of reference was an irregularity which the parties could waive; that, as they appeared before Mr. Bennett by counsel, and took no objection to his trying the cause as referee, but examined witnesses and tried the cause upon the merits, the case should now be treated as though Mr. Bennett had been legally appointed referee in the first instance. We do not think the appearance of the parties before Mr. Bennett, or even going to trial on the merits before him, could or did confer upon him power to act as referee, and supply the place of an order of appointment. For it is plain that it is the order of court which clothes the referee with authority to act, and gives validity to his report. The voluntary appearance of the parties before Mr. Bennett, under the circumstances, would give him authority to take the testimony of witnesses, and re [77] port it to the court. But we cannot see any ground for giving it any other or greater effect as a reference, as the record now stands. It is quite clear that no witness could be punished for perjury committed before Mr. Bennett, if he was never appointed referee (Bonner v. McPhail, 31 Barb., 106); nor could Mr. Bennett have been attached and punished for any misconduct or failure to act as referee. “ If a referee fails to report, either party has a right to rule him to report; or, if he fails to act after he has accepted the appointment, to obtain an order of the court that he proceed; or, if he suppresses a part of the testimony, or makes a defective report, to require him to amend the report. The statute provides that the court may require the referees to amend their report when necessary. All these orders, if not obeyed, may be enforced by the court, by attaching and imprisoning the referee, or fining him; and for improper conduct, or even for failing to discharge the duties of his office, he may be removed by the court, and another referee appointed.” Hills v. Passage, supra, p. 300. If these remarks are applied to the case of Mr. Bennett, they sufficiently show that he did not occupy the position of a legally appointed referee, nor did the acts of the parties have the effect to confer upon him the power of one. The court, in the present state of the- record, would not proceed against him for a contempt or violation of its orders. Whether or not it would be competent for the circuit court, on a proper application therefor, to enter an order nune pro tune, so as to give the same effect to the trial had before Mr. Bennett as though he had been duly appointed a referee in the cause, is not a question beforp us, and is therefore undecided. It is sufficient to say no steps were taken to perfect the record in this respect, and supply the want of an order, if it could be supplied. Possibly, enough appears in the minutes of the court to authorize the entry of an order of reference nune pro tune/ but the entry of such an order, and its'effect when made, must be remitted for the consideration of the court below. On [78] tbe record before us, tbe judgment of tbe circuit court confirming the report of tbe referee must be reversed, and tbe cause remanded for further proceedings according to law. By the Court. — It is so ordered.