Trummer v. Konrad

Mr. Chief Justice Moore delivered the opinion. This is an appeal by the defendant from a judgment rendered against him for the sum of $533.15, the amount due on a promissory note, including attorney’s fees. The notice of appeal assigns as error the action of the court (1) in directing a reference ; (2 ) in rendering judgment for the amount demanded in the complaint, notwithstanding the finding by the court that defendant was entitled to a credit of $133 on his counterclaim; (3) in making the unreasonable award of $75 as attorney’s fees after finding such credit should be allowed; and (4) in adjourning the court for the term the same day the judgment was rendered, thereby depriving the defendant of his. right to a day in which to move for a new trial. No bill of exceptions appears in the transcript, but the report of the referee, and the order of the court modifying the fifth and setting aside the eleventh finding of fact, are included in the record. In Osborn v. Graves, 11 Or. 526 (6 Pac. 227), Thayer, J., in speaking of the report of a referee included in the transcript on appeal, but not made a part thereof by bill of exceptions,- says: “ The fact that the report is found in the judgment roll, and a copy has been certified to this court as a [56] part of the transcript, does not authorize us to consider it, any more than it would any other paper not properly a part of the transcript.” In Van Bibber v. Fields, 25 Or. 527 (36 Pac. 526), the principle announced in the preceding case was approved and followed, so that the rule may be considered as settled in this state. The statute authorizes the trial court to direct a reference when the issue of fact to be tried involves the examination of a long account (Hill’s Annotated Laws, § 222); and it has been held that the power thereby conferred was not an infringement of the constitutional right to a trial by jury: (Tribou v. Strowbridge, 7 Or. 156; McDonald v. Mortgage Company, 17 Or. 626 (21 Pac. 883). It must be presumed that official duty has been regularly performed, and, this being so, it follows, in the absence of any proof to the" contrary, that the reference was made in pursuance of law; and it must also be presumed, for like reasons, that the amount awarded as attorney’s fees was reasonable. The report of the referee, improperly included in the transcript, and the modifications thereof by the court, constitute the findings of fact upon which the judgment is predicated; but, since the action was not tried by the court in the absence of a jury, the judgment only is before us; and it must be presumed, in the absence of any legal evidence to the contrary, that it is supported by the findings of fact. The transcript shows that on July 1, 1895, defendant’s counsel moved to modify and set aside certain [57] findings of the referee, and that, on the tenth of that month, the court, in part, granted his motion. The findings of a referee in an action at law must be regarded as the special verdict of a jury upon the issues for trial, and a motion to modify or set aside such findings is to be treated as a motion for a new trial; and, since the judgment was not rendered until nine days after the motion was filed, it cannot be said to have been prematurely given. It follows that the judgment must be affirmed, and it is so ordered. Affirmed.