DeLong v. Stahl

The opinion of the court was delivered by Brewer, J.: The issues in this case were at the December Term 1872, of the district court of Montgomery county, referred to a single referee, with instructions to report his determination ten days before the beginning of the next term. No report was filed within the time named, 'but one was filed on the last day of that next term. This report is dated of the day it was filed. There is nothing in it to show when the trial before the referee was completed, or his decision rendered. And if you are to look at the affidavits filed on the motion to set it aside, it would appear that his decision was not made until the day before the filing. At any rate, it does not appear from the report or otherwise that the trial was completed and the decision made prior to the time fixed by the court for filing the report. A motion to set it aside, [563] on the ground that at the time of filing the referee had no power to act, was overruled, and judgment entered on the report. In this we think the court erred. The referee is an officer whose" power and duties are created by the order of the court. If he go outside the limits of that order, his acts are void. When the time within which by the terms of the order • he must act has expired, his office has ceased, and his powers are ended. Neither party is obliged to take any further notice of the reference. Here he was ordered to make his report by a specified time. When that time had passed without the filing of a report his powers as referee were at an end, and any further action was as though no order of reference had ever been made. Nor did the confirmation of the report make valid that which was before void. The report, when filed, was no more than a volunteer report; and a court cannot by confirmation breathe life into such a document. Harner v. Coffin, 1 Oregon, 99; Brower v. Kingsley, 1 Johns. Cases, 334; White v. Pivyer, 10 Geyer, 441; Ryan v. Dougherty, 30 Cal., 218; Francis v. Ames, 14 Ind., 251; Smith v. Warner, 14 Mich., 152. Before disposing of the case we desire to notice one other matter. No exceptions were filed with this report, and several affidavits are filed to show that plaintiffs in error had no knowledge of the determination of the referee until after the filing of the report, and no opportunity to prepare and present a bill of exceptions to the referee. The statute requires the referee to sign exceptions and return them with his report. In practice a party does not generally like to write out exceptions and have them signed, unless the findings are against him. To do so pending the hearing, works disagreeable delays. Hence a referee ought always, after the preparation of his report, to give notice thereof to the parties a sufficient time before the filing for them to prepare exceptions if desired. The writer of this opinion, when upon the bench of the First Judicial District, made a general rule requiring in all cases of reference five days’ notice to each party before the filing of the report. It would be well for all trial courts, if [564] they have no general rule applicable, to prescribe in each order of reference the length of notice to be given before the filing. In this way the defeated party can always save his exceptions; and whenever in the absence of any general rule, or special order, it appears that a defeated party has, without any laches on his part, been deprived through the action of the referee of an opportunity to prepare and preserve his exceptions, the report should be set aside. In taking advantage of this case to make some suggestions as to references, we do not wish to be understood as intimating that the facts in this case show any misconduct on the part of the referee. So far as those suggestions are concerned, we speak not in criticism of the present, but in advice for future cases. The judgment of the district court will be reversed, and the cause remanded for further proceedings. Kingman, C. J., concurring.