Oaks v. Jones

The opinion of the court was delivered by Valentine, J.: This was an action for malpractice in performing a surgical operation, brought by Jones against ■Oaks. The action was referred, by the consent of the parties, to three referees, who tried the case, and reported as the final result of their hearing and deliberations, as follows: “ Court [referees] met pursuant to adjournment, and having heard and duly canvassed the evidence, said referees find as follows — for the defendant, there being no cause of action.” This report seems to have been filed in the district court; but what then became of it the record does not show. Oaks (the defendant below, and in whose favor the report was made,) brings the case to this court and assigns, for error “that at the October Term 1872 of the district court of Cher.okee county the court set aside the said report of said referees.” [445] Now if it is true that the court did set aside said report, still the court did not commit any error by so doing. The statute requires that the referees in their report “must state the fads found, and the conclusions of law separately.” (Code, § 293.) A general finding for the plaintiff, or “for the defendant,” as in this case, is not of itself sufficient. The facts must be found specifically. Such a finding as the referees made in this case is not good under any law. It would not have been good under the old equity practice. The master in chancery was always required to find specifically. The question of the sufficiency of the report however, in this case is not before us. But we do not understand that the district court “ set aside said report,” as claimed by plaintiff in error. From the record filed in this court it appears that the report of said referees is still pending undisposed of in the district court. And while it is thus pending, neither party can bring the case to this court for the purpose of testing the sufficiency of the report. Especially the party in whose favor the report is made cannot bring the case to this court for such a purpose. The petition in error must therefore be dismissed. All the Justices concurring.