United States Rolling Stock Co. v. Johnston

Tatloe, J. The appellants claim that the circuit court had no power to review the order of December 12, 1885, after the term at which it was made ■ had expired, without the consent of the parties thereto; and they further claim that, under the stipulation made, the only power given to the court in reviewing such order was to decide, whether the case made by the pleadings in the action was one which might, in the discretion of the court, be referred for trial to a referee under the provisions of sec. 2864, B. S., and that the power of the court to use its discretion in referring or not referring the case, provided the court had [185] the power to refer it under said section, was not conferred upon the court by the stipulation. Upon a careful reading of the stipulation, in the light of the circumstances under which it was made, we are inclined to hold that the learned counsel are correct in their construction of it. The clause reserving the right of appeal to this court is in accord with that construction. If the case is in fact one which could be properly referred in the discretion of the court under the law, an appeal to this court would be of no avail to the party appealing. As a general rule, the only question which this court would consider upon an appeal from an order of reference made under the statute, would be the power of the court to refer the case under the statute. Carpenter v. Shepardson, 43 Wis. 413; Welsh v. Darragh, 52 N. Y. 590. Holding, as we do, that the stipulation only conferred on the circuit court the power to decide whether the case was one in which a compulsory reference might be made under the statute, we are clearly of the opinion that the circuit court should have held that it was a proper case to refer, and should thereupon have permitted the order of reference to stand. From what appears in the record we cannot determine upon what ground the order of the circuit court reversing the order of reference was made; but, assuming that the learned circuit judge understood the stipulation as we do, he must have determined that it was not a case in which he could compel a reference. It has been repeatedly decided by this court, and other courts under similar laws, that it is no objection to a. compulsory reference of a case in which a long account must be proved by the plaintiff in making out his case, that the defendant by his answer denies the existence or validity of the contract upon which such accounts are founded. Sup'rs of Dane Co. v. Dunning, 20 Wis. 210; Monitor Iron Works Co. v. Ketchum, 47 Wis. 177; Welsh v. Darragh, 52 N. Y. 590; Kingsley v. Brooklyn, [186] 1 Abb. N. C. 108; Cowden v. Teale, 6 Hun, 532; Schermerhorn v. Wood, 4 Daly, 158. Tbe defendants having put in a general denial of all liability to the plaintiff, that the issues involve the examination of a long account of the plaintiff against the defendants, within thé meaning of the statutes, is hardly a debatable question under the decisions of this court. Mead v. Walker, 17 Wis. 189; Sup’rs of Dane Co. v. Dunning, 20 Wis. 210; Cairns v. O'Bleness, 40 Wis. 469; Monitor Iron Works Co. v. Ketchum, 47 Wis. 177; Carpenter v. Shepardson, 46 Wis. 557; Carpenter v. Shepardson, 43 Wis. 406, 413; Priest v. Varney, 64 Wis. 500; Gilbank v. Stephenson, 31 Wis. 592. We think the circuit court erred in deciding that the action is nyt one proper to be referred under the statute, and under the stipulation he erred, therefore, in setting aside the order of reference mado in the action. By the Court.— The order of the circuit court appealed from is reversed, and the cause is remanded for further proceedings.