Butler v. Cornell

Mr. Justice Bailey delivered the opinion of the Court: Having carefully considered the record in this case, in the light of the briefs and arguments presented by counsel in this court, we are disposed to concur in and adopt the opinion of the Appellate Court, a copy of which appears in the .foregoing statement. The points covered by that opinion will therefore need no further discussion. The point made in the Appellate Court that many of the items of the defendant’s account allowed by the referees were improperly allowed, is renewed here, and it need only be noticed, in addition to what was said by that court, that this contention calls for an examination and weighing of the evidence, and raises mere questions of fact, which we are prohibited by the statute from investigating. As to all matters of that character, the judgment of the Appellate Court is conclusive, so as not to be subject to review in this court. The other propositions presented by the arguments of counsel here do not seem to have been raised either in the Appellate Court or in the trial court, and we are of the opinion 'that they can not be raised in this court for the first time. The first is, that at the time the order for the appointment of the referees was entered, the issues in the ease had not been j oined, and it is claimed that the order of reference was therefore wholly without jurisdiction and void. Section 1, of chapter 117, of the Revised Statutes, under which the order was made, is as follows: “That in all common law causes in courts of record, after issue joined, it shall be competent for the court, upon agreement of the parties or their counsel, to appoint one or more referees, not exceeding three, who shall have authority to take testimony in such cause, and report the same in writing, with their conclusions of law and fact, to the court, and the court shall have power to render judgment upon the filing of such report: Provided, either party may except to such report, and the court may, if necessary to take further evidence, refer the cause back to the referees, with instructions. Notice of the time of hearing such exceptions and the taking of such evidence, shall be given, under such rules as the court may prescribe.” The order of reference was entered by the agreement of the parties, and it is true that at that time, no replication to the defendant’s plea of set-off had been filed, but shortly after the order was entered, the plaintiff filed, for his replication, a general traverse of the plea, concluding to the country, and thereby the issues were duly joined. After this was done, both parties appeared before the referees, by their counsel, introduced evidence, and contested the matters in controversy upon their merits, and after the referees had filed their report, the plaintiff’s counsel submitted numerous exceptions thereto, but in none of them, and at no time while the cause was pending in the Circuit Court, was any objection made to the proceedings by the plaintiff, on the ground that the issues had not been joined at the time the order’of reference was made, nor does that point seem to have been even suggested, either in the Circuit Court or in the Appellate Court. We held in Morey v. Warrior Mower Co. 90 Ill. 307, that proceedings before referees, being statutory, must in all substantial respects, pursue the statute, or they can not be sustained, and we still adhere to that view. And it may be that, if the plaintiff had raised the objection which he now makes at the proper time in the Circuit Court, it would have been the duty of the court to hold, that the order of reference had been improvidently entered, and to set it aside. But we think it was an irregularity which it was in the power of the plaintiff to waive, and that by failing to make the objection until the case has reached this court, he must be deemed to have waived it, or to have estopped himself from taking advantage of it. Again, it is insisted that the order ,of reference did not, in its provisions, conform to the statute. By the terms of the order, the cause was referred to three persons named, as referees, “to report their conclusions of law and fact herein.”' The objection is, that it did not, in express, terms, require them to report the evidence heard by them to the court in writing. This objection, like the foregoing, is heard for the' first time in this court, and for that reason it should be disposed of in the same way. Furthermore, we are inclined to the opinion that it was not essential to the validity of the order of reference, that it should, in express terms, require the referees to report the evidence in writing. The statute, after authorizing the appointment of referees, prescribes that as one of their duties, and that duty would be in no degree more obligatory from being repeated in the order of reference. It is imposed by the statute itself, and there is nothing in the language of the statute which would seem to require that the order appointing the referees should also specify their duties, or .prescribe t-he manner of their performance. Again, it is objected that, while the order of reference required the referees to report at the next term of the court, their report was not in fact filed until a subsequent term, the cause being continued at the next term, and an order being entered giving the referees further time to report. Also, that after the report was filed, the cause was referred back to the referees, not to take further testimony, but to give the parties an opportunity to except to the report. Whether these proceedings were irregular or not we are not called upon now to-determine. These orders were all entered apparently with the consent of the parties, or at least they were neither objected nor excepted to, and their propriety is now questioned here for the first time. This we think can not be done. We find no error in the record which is now open for review, and the judgment of the Appellate Court will therefore he affirmed. Judgment affirmed. Baker, C. J., having heard this case in the Appellate Court took no part in its decision here.