Manning v. Nelson

Deemer, O. J. I. Tbis action was to recover of defendant tbe amount of two promissory notes, and of an account alleged to be due and owing the plaintiff. The action was aided by attachment. Defendant admitted the execution of the notes, pleaded payment, and also asked judgment on a counter-claim based upon an open account. On the issues thus joined the cause was sent to a referee, who heard part of the evidence. During the trial before the referee the parties entered into an agreement of settlement, by the terms of which it was determined that there was due plaintiff the sum of four hundred and eighty dollars. It was also agreed that the sheriff should turn over to plaintiff, out of the cash and notes in his hands, the sum of four hundred and [36] eighty dollars, and should deliver the balance of money and notes in his hands to defendant, and should release to defendant all other property held by him. Defendant was to pay the cost of keeping and feeding the horses and property held under the attachment. Defendant agreed to pay on the costs the amount already paid out by him, and waived any right to recover the same back. It was further agreed that defendant should turn over to plaintiff all uncollected horse accounts, due for the services of a certain stallion; that they were as shown by his testimony before the referee, and he by the agreement assigned the same to the plaintiff, who accepted the same in lieu of any claim against defendant for any of the costs in the case, and agreed to pay the costs on or before the October, 1891, term of the district court of Van Burén county. It was also agreed that the referee should report the settlement and agreement to the court at its April, 1891, term, and that, an order of confirmation should then be entered accordingly. It was further agreed that, if the assigned accounts did not pay the costs in full, then each party was to pay one-half of the sum remaining; and it was stipulated that the former part of the agreement should be thus modified. It does not affirmatively appear that this matter was reported to the district court. But we do find that some years afterward the plaintiff filed a motion for judgment for costs, and that shortly thereafter the defendant filed a like motion; and it further appears-that on the next day after defendant’s motion was filed, to-wit, on the fifth day of May, 1893, the court made an order referring both motions to J. S. McKemy, Esq., who was ordered to make a written report of his findings of fact and conclusions of law at the next term of court. Nothing appears to have been done by this referee. The case remained on the district court docket, and a trial notice was filed for the December, 1894, term, but no order was made at that term. At the April, 1895, term, and on the sixth day of May, an order was made, reciting that the cause came on for hearing upon the matter of unpaid costs therein taxed, and that the parties appeared by their attorneys, and argued and [37] fully submitted the case. This order also gave defendant judgment against the plaintiff for the amount of the unpaid costs, to-wit, five hundred and forty-three dollars and forty-five cents, and directed execution to issue therefor. To this plaintiff objected, and he was given leave to file a motion to set aside the judgment or to retax costs at any time before ten days from the beginning of the next term of court. On the sixteenth day o£ January, 1897, plaintiff filed his motion to set aside and vacate the judgment for costs, for the reason that the court had no jurisdiction of the cause; the same having been referred to J. S. McKemy, and he having made no report, and there being no orcler directing him to report the same back, the cause was pending before him, and not before the district court. Thereafter plaintiff filed an amendment to his motion, in which he asked the court to expunge the order and judgment entered in May, 1895, and to order the referee to make report at the April, 1897, term. The reasons given for asking this order were (1) that the cause was pending before the referee; (.2) that the plaintiff had paid his part of the costs as agreed in the stipulation for settlement; (3) the order was contrary to the terms of the settlement; (4) the cause should have been ordered back from the referee, and notice given, before the court could take jurisdiction; (5) the reference was made at the suggestion of the defendant, and it was defendant’s duty to prosecute the case before the referee; (6) the judgment, although null and void, is a menace to plaintiff, and prevents him from proceeding with the case. This motion, as amended, was submitted upon affidavits filed in support of and in resistance thereto, and the court made an order overruling the motion. The appeal is from this ruling. 1 As we understand it, two points are relied upon for a reversal: First„ it is insisted that, as the matter was referred to J. S. McKemy, the court had no jurisdiction of the case; second, it is contended that the judgment is contrary to the terms of the settlement, and that the court has power at any time to correct an evident mistake and oversight. [38] It will be noticed from what has been said that the referee, McHenry, was appointed at the April, 1893, term of the district court, and that he made no report at the next term. In truth, he made no report at any time. Tha well-settled rule in this state is that a referee has no power or authority to act after the time has expired in which he is to make his report. Davis v. Caldwell, 100 Iowa, 658; Goodale v. Case, 71 Iowa, 434. In these cases it is held that after the time has expired a referee ceases to have authority to act, and is without jurisdiction. This being true, the case is as if there had been no reference, and the district court had full power to hear and determine the motions. Having this power, it proceeded to pass upon them; and the record recites that both parties appeared by their attorneys, and fully argued and submitted the case. On this hearing the court found that defendant’s motion should be sustained,- and that plaintiff should pay the costs. We have seen that the referee had at this time lost all control of the proceedings, and that the matter was then pending in the district court. Appellant contends, however, that neither he nor his counsel had any notice that the matter would be presented to the court. The record recites, however, that there was an appearance by counsel and the evidence adduced upon the hearing of the motion to vacate is in conflict. As the case is not triable de novo, we must assume that the trial court held there was an appearance for the plaintiff to the motion of defendant to tax costs. If there was an appearance, then it is clear that plaintiff’s remedy was by appeal from the judgment taxing the costs to him. But, if it should be found that plaintiff did not appear, he is in no better position. The case was pending in court, and it was the duty of counsel to attend to it. No notice was required, unless it be the trial notice referred to in rule 2 of the rules of practice adopted by the district judges of the state, found in McClain’s Annotated Code, p. vii. of the preface. We are of the opinion, however, that this rule does not apply to motions, and that plaintiff [39] was not entitled to notice that the motions would be brought on for hearing. We are constrained to believe that the reason why appellant’s counsel did not appear, if it be true that he did not, is to be found in tbs fact that he relied upon his contention that the case was before the referee, and not in the district court, and that the court had no- jurisdiction of the matter. 3 The motion to vacate does not charge that any fraud was practiced by the defendant; nor does it charge any other irregularities in obtaining the order than those we have already considered. It is not, then, a case for relief under section 3154 of the Code of 1873. McConkey v. Lamb, 71 Iowa, 636; Jackson v. Gould, 96 Iowa, 488. If it were, the motion was not filed within the year given by statute. See Code 1873, section 3156. As the trial court had jurisdiction, the remedy, if any, was by motion filed within a year, or by petition in equity, if the error was not discovered until after the expiration of the year. The motion we are now considering was not filed until nearly two years after the order was made-. As sustaining our conclusions, see Shelley v. Smith, 50 Iowa, 543; Partridge v. Harrow, 27 Iowa, 96. The case does not fall under the provisions of section 179 of the Code of 1873, for the reason that the mistake of the court in ordering the costs taxed to the plaintiff, if there was one, was a mistake of law, and not of fact. Knox v. Moser, 72 Iowa, 154. The order overruling plaintiff’s motion to vacate is correct, and it is appirmed.