Cattle v. Haddox

By the Court. This case was referred to a referee, who, after due notice to the parties, heard the testimony and made a report of his findings to the court. The testimony was taken by the court reporter, apparently by consent, as it stated that fees were paid by the parties equally. The bill of exceptions was served upon the attorneys of the appellee, and their certificate that they had no amendments to propose is in the record. Exceptions were filed to the report of the referee, which were overruled, and judgment entered on the report. The judge thereupon signed the bill of exceptions, [60] but it is not signed by tbe referee. The appellee now moves to quasb the bill, first, because it was not allowed and signed by the referee, and second, because it does not purport to contain all the testimony. No objection was made to the bill in the district court, and one of the grounds of objection to the report in that court was, that the findings were against the weight of evidence. The bill was before the district court without objection, and it is too late to raise the objection for the first time in this court. A referee should sign a bilj of exceptions in any case tried before him, if so required by either party; but objections to the bill or its form must be made in the district court, and unless so made cannot be considered here. The second ground of the motion, even if true, would not justify the court in quashing the bill, although in a proper case it might refuse to set aside the finding as being against the weight of testimony. But where the attorneys of the adverse party, when called on to propose amendments, certify on a bill which purports to contain the testimony, that they have no amendments to propose, the court will presume that the bill contains all the testimony. The motion must be overruled. Motion overruled.