Emerson v. Bigler

Pemberton, C. J. The defendant claims that the failure of the referee to file his report in court within the 10 days prescribed by Section 1139 of the Code of Civil Procedure, invalidates the report and judgment rendered thereon, and that he is consequently entitled to .a new trial. We think this section is directory only, and that the failure of the referee to file his report in 10 days did not entitle the defendant to a new trial. (Keller v. Sutrick, 22 Cal. 472; Broad v. Murray, 44 Cal. 228; McQuillan v. Donahue, 49 Cal. 157.) If the defendant for any reason had desired the report filed sooner than the referee filed it, he should have applied to the court for a proper order in the premises. The defendant assigns as a further ground for a new trial that the referee did not overrule his motion for a nonsuit Avhen the argument thereon closed, but took it under advisement, and did not in fact rule on it until he filed his report, many days thereafter, and that he Avas thereby deprived of the right and opportunity to offer any evidence in support of his defense. The referee’s report shows that he overruled defendant’s motion when the argument thereon closed, and that the defendant thereupon declined to introduce any evidence, electing to stand entirely on his motion for a nonsuit. Affidavits of plaintiffs’ Avitnesses are to the same effect, and shoAV that the defendant absolutely declined to offer any evidence. It is true, affidavits of defendant’s counsel are to the effect that they did not Avaive the right to introduce their evidence after the referee permitted plaintiffs to reopen, the case pending the argument on the motion for a nonsuit. But this is positively contxadicted by the report and affidavits of the plaintiffs. This question of fact was passed upon by the coxxrt on the hearing of the motion for a new trial, and we think the [204] showing amply supports the ruling of the court thereon. If, as defendant contends, he was deprived of this right by the action of the referee, he should have taken steps at once, when the report was filed, to have the case remanded to the referee to take his evidence. Upon a proper showing, the court would certainly have caused the referee to take and report the defendant’s evidence, if he had declined to do so, as claimed by defendant. But there is no showing that defendant ever in fact offered any evidence. We think that the record shows that the defendant intended to stand, and did stand, on his motion for a nonsuit. The defendant contends that the findings of fact of the referee are in many respects defective, inconsistent, and not supported by the evidence. The referee, in substance, finds that the partnership was created, existed, and was dissolved as alleged in the complaint, and practically admitted by the answer. He also finds that the defendant disposed of a number of cattle belonging to the partnership, the value thereof, that such disposition of the cattle was in violation of the partnership agreement, and that the defendant had refused to account for the proceeds of the sale of the cattle. As a conclusion of law, the referee reports that the plaintiffs are entitled to recover of defendant the value of the cattle. We think the evidence sufficiently supports these findings' of fact, and warrants the conclusion of law reached by the referee. The finding are not inconsistent or defective. If defendant, for any reason, was dissatisfied with the findings, he should have filed his exceptions thereto, which he did not do. The contention is made, also, that the referee erroneously admitted evidence of the contents of certain letters. It is disclosed by the record, that the partnership was formed or entered into by correspondence between the parties. Some of the witnesses testified to the contents of some of these letters. The contents were permitted to be proved after the loss or destruction of the letters had been shown, for the sole purpose, seemingly, of showing a partnership. As the partnership was not denied, we cannot see that there was any neces [205] sity foi’ this proof, and, as defendant did not deny the partnership, we fail to see how he could have been injured, in any event, by the introduction of this testimony showing a partnership. Complaint is also made that witnesses were permitted to-testify to the value of the cattle who were not qualified to give such testimony. These witnesses, it is shown, knew the-, cattle, saw them frequently, were engaged in raising cattle,, and were fully qualified, we think, from the showing, to give evidence of the value of the cattle. This question is fully discussed by this court in Holland v. Huston, 20 Mont. 84, 49 Pac. 390. There is absolutely no merit in this assignment. There are a number of errors assigned in the record, but they are all of like character as those treated above, and it is. wholly useless to discuss them in detail. We think the assignments of error are entirely without merit. The judgment and order appealed from are affirmed. Affirmed. Hunt and Pigott, JJ., concur.