Bradshaw v. Morse

Pemberton, C. J. The appellant contends that the whole issue — in other words, the whole case — was referred to the referee f )r determination, and that, as the whole issue was submitted by order of reference to the referee, the findings of [218] the referee became the findings of the court, and that the court could not modify or correct the report of the referee except on a motion for a new trial. In other words, that the court was bound .to enter judgment in accordance with the findings of the referee, and could only disapprove, correct, or modify the same on a motion for new trial after judgment. The appellant relies upon Section 288, First Division, Compiled Statutes 1887 (in force when this case was commenced), and Section 1140, Code of Civil Procedure 1895, to support his contention. These sections are practically the same in effect. But we think counsel for the appellant are not supported in their view of this question by the terms of the order of reference. Their premise is wrong. The terms of the order of reference determine the scope of the referee’s authority. 20 Am. & Eng. Enc. Law, p. 682, and authorities cited in note. By the terms of the order he was authorized to ‘ ‘make up an account stated between the said parties,” and report the same with his findings thereon to the court. There is evidently a clerical error in the order in the use of the terms ‘ ‘make up an account stated. ’ ’ The referee could not ‘ ‘make up an account stated between the parties.” The parties themselves only could do this. But the referee could state an account between the parties. This is beyond question what he was appointed and authorized to do, — nothing more, nothing less. He was given no authority to try and determine the whole issue or case. • He was not clothed with the powers of a tribunal to that extent by the terms of the order of reference. His duties were those of an accountant, with power to examine the books, papers, and transactions of the firm, hear testimony, and report the same; that is the account which he is authorized to state, between the parties to the court, with his findings thereon. Under the terms of the order of refence, the findings which the referee was authorized to make to the court could only be advisory. Under the circumstances, we see no error in the action of the trial court, and the judgment is therefore affirmed. Affirmed. Hunt and Buck, JJ., concur.