Beard v. Hand

Black, C. — Before the issues had been completed in this cause, which was brought by the appellee against the appellant, it was referred, upon a written agreement signed by the-attorneys of both parties, which, omitting the title of the-cause and the signatures, was as follows: “ It is hereby agreed between the plaintiff and the defendant that this cause is hereby .submitted to the Hon. George W. Depbo, as a master commissioner, to complete the issues in said cause and to take the evidence in said cause, in vacation or term time, and report his conclusions upon the proof so taken, as, also, his conclusions upon the law applicable to> the facts proved in the case, and that he submit the same to-the Harrison Circuit Court at its December term, 1879.” This was, in effect, a reference under section 349, et seq., of the code of 1852, the referee being designated as a master commissioner. Shaw v. Kent, 11 Ind. 80; Ware v. Adams, 12 Ind. 359; McClure v. McClure, 19 Ind. 185; Reid v. State, ex rel., 58 Ind. 406. The pleadings necessary to the completion of the issues were-filed before the referee, and were by him returned with his-report. The report, besides the referee’s conclusions of fact and of law, contained large portions of the evidence (whether all that was taken by him or not does not appear) set out, not in the order in .which it was introduced, but each portion in [185] connection with the finding of fact which it illustrated. It-was unnecessary, under the agreement of the parties and the order of reference, which conformed to the agreement, as well as under the statute, to report any evidence. But the referee’s-conclusions are not vitiated by the presence in his report of evidence, which, however, can not be considered by us. See Ware v. Adams, supra; Royal v. Baer, 17 Ind. 332. The principal question argued in this court, having been presented to the court below by exceptions to the report, relates to the allowance by the referee of a certain credit to the appellee in the adjustment of partnership accounts of the parties; and the ground of appellant’s objection thereto is that this item of credit was not properly embraced in the issues submitted to the referee. The item was included in the issues. Whether it was embraced in the cause of action stated in the complaint, about which there is dispute, we need not decide. It was distinctly stated in the reply. Appellant, insisting that it was not within the complaint, contends that,, therefore, the reply was a departure. But if a defendant go-to trial without objection to a reply, he waives objection thereto, on the ground of departure. The objection can not-be ^iade after verdict. Prenatt v. Runyon, 12 Ind. 174; McAroy v. Wright, 25 Ind. 22; New v. Wambach, 42 Ind. 456; Hopkins v. Greensburg, etc., Co., 46 Ind. 187; 1 Chit. Pl. 678. And the report of the referee stands as a verdict or finding. Section 350, code of 1852; section 24, 2 R. S. 1876, p. 324. It is stated in the record that a demurrer to the reply was-filed before the referee, and the demurrer is set out; but no-ruling upon the demurrer is showm. No objection was made in the court below, nor has any been urged here, because of a trial without a decision upon the demurrer; indeed, it is claimed by counsel for appellant in their brief, that the demurrer was overruled. No question is before us as-to the sufficiency of the reply. The matters stated in the reply were tried before the referée, and after his report had been returned [186] it was too late to object that they were not properly embraced ' in the issues, on the ground of departure. The referee found appellee entitled to this credit. We can not examine as to the correctness of this finding, the evidence not being before us. Appellant has also assigned as error the 'overruling of a motion made by him for judgment for costs upon issues determined in his favor by the referee. Of this it is sufficient •to say that the question is not. saved by bill of exceptions. Urton v. Luckey, 17 Ind. 213; State v. Saxon, 42 Ind. 484; Tilman v. Harter, 38 Ind. 1. We find no available error in the record. Per Curiam. — It is ordered, upon the foregoing opinion, that the judgment be and it is hereby affirmed, at the costs of appellant.