Illstad v. Anderson

[172] The opinion of the court was delivered by Corliss, C. J. Most of the alleged errors in the case are not properly before us. The action was for dissolution of a co-partnership between plaintiff and defendant. The issues coming on for trial at a regular term, the court made an order of reference, referring the action to a referee, “with the usual powers.” One of the errors assigned is the action of the referee in reporting findings of fact and conclusions of law. ' It is insisted that the order of reference is not broad enough to warrant the exercise by the referee of such power. The answer to this claim, is the consent of the defendant and appellant, made in open court, that, the case be referred “to take testimony and report.” In all cases it is the duty of the referee to report the evidence, and the word “report” in the consent is unnecessary, unless it be construed as embracing the report of' findings of fact and conclusions of law. Moreover, the order in terms referred the action, i. e., the whole case, and was not limited to any specific issue or fact. Where the order is upon consent, it may direct the reference to all or any of the issues. Assuming that this was an order of reference upon consent, all the issues must be regarded as having been referred, not only because the whole case is referred, but also because no particular issues are designated in the order. Laws 1889, c. 112, § 1. If it is a reference without consent the same conclusion is inevitable. It is apparent from § 2 of this act that unless the reference is limited by this order to .some specific question of fact, the referee is authorized to hear and decide all the issues. On the trial by a referee, practically the same proceedings are had as on a trial before the court. The referee must not only report the evidence, but also his findings and conclusions. This is what he has done in this case, and this it was his duty to do under the statute and the order of reference and defendant’s consent. It is next insisted that the referee, if he had full authority to try the issues, erred in not ruling upon certain objections to evievidence offered by plaintiff and received by the referee. No exception having been taken before the referee, the defendant cannot avail himself of these objections. Section 8 of chapter 112 of Laws of 1889, requires the referee to report to the court [173] all exceptions taken on the hearing. This clearly contemplates that exceptions must be taken as on trials before the court to entitle a party to challege on appeal the ruling of the referee. This rule is confirmed by the general provision that “the trial by referee shall be conducted in the same manner as a trial by the court.” Neither did the defendant take any exception to the referee’s ruling when the case was before the court on application to confirm the referee’s report, and for judgment, nor did he there renew his objections and except to the refusal of the court to sustain him in his objections to the evidence received by the referee. A still more decisive aswer to these objections is that defendant by his affirmative action has sealed his lips against urging them here. Preliminary to the hearing before the referee, the defendant himself objected “to the referee making any rulings whatever.” The referee, therefore, merely followed the wishes of the litigant, who now insists that, the referee erred in acceding to his request. It is further urged that the court erred in not dismissing the action, because it is claimed that it appeared that the business in the prosecution of which were earned the profits, to recover his share of which the plaintiff instituted this action for disso-, lution and accounting, was the sale of intoxicating liquors, and that such business was illegal, because the plaintiff held no license, authorizing him to conduct the same, the only license being issued to and held by the defendant. There are several answers to this objection. The defense is not pleaded. Therefore defendant had no right to offer evidence on the point, nor could he avail himself of evidence sustaining it, although disclosed by plaintiff’s own case. Cardoze v. Swift, 113 Mass. 250. Said the court in this case: “In such an action a defendant who has not pleaded illegality in the contract sued on has no right to offer evidence of such illegality or even to avail himself of it, when disclosed in the plaintiff’s testimony, if the court does not refuse to entertain the case.” See, also, Railroad Co. v. Miller, 16 Neb. 661, 21 N. W. Rep. 451-453. The question is not before us for another reason. The error, if any, in denying the motion to dismiss was an error of law occuring on the trial. It should have been specified in the bill of exceptions. Comp. [174] Laws, § 5090, subsea 2. No such specification having been made, it was the duty of the .trial court to disregard the point' on the motion for new trial, and this we must assume he did in denying the motion for new trial. A third reason for our ruling is the failure of the defendant to renew his motion to dismiss after he had finished his case, the motion having been made at the close of plaintiff’s case. Bowman v. Eppinger, 1 N. E. 21, 44 N. W. Rep. 1000. There was a substantial conflict in the evidence on the question of partnership, and therefore the finding that there was a co-partnership between plaintiff and defendant will not be disturbed. The judgment is affirmed. All concur.