Parcher v. Dunbar

Siebecker, J. The important question controverted was whether appellant sold to respondent his interest in the three North Side Lumber Company notes. The errors assigned in the record are covered by a determination of this issue. It appears that the court had not determined any of the rights of the parties under the issues before this reference was made. The order of reference directs that the issue in the action be referred to the referee, “to take the testimony and state the account between the parties.” This reference clearly did not empower the referee to hear and try the whole issue, or that 404 he should hear and determine any part of the issue in the case. The plain import of the order of reference is that the-referee should take the testimony material to the issue and report thereon his statement of the account between the parties for the information and assistance -of the court. The referee could do no more than the order prescribed. Secs. 2864, 2865, Stats. 1898; Best v. Pike, 93 Wis. 408, 67 N. W. 697. An inspection of the referee’s report discloses the fact that he incorporated findings upon issues which were beyond the scope of his authority and power under the order. lie attempted to decide the vital issue of the case involved on this appeal between appellant and respondent. The court, however, was not hound by such determination, and could properly disregard such determination and proceed as though the-report were properly submitted. The result is that the basic-issues were left to he decided by the court upon the testimony. It proceeded and made its findings of fact and determined the rights of the respective parties. Was the court’s finding on the issues between the appellant and respondent as to the sale of these notes contrary to the clear preponderance of the evidence ? A careful examination of all the evidence material to this issue leads us to the conclusion that the findings of the court are well supported by the evidence and cannot be disturbed. A restatement of the account as first reported by the referee necessarily resulted from the difference between the court’s findings on the fundamental rights of the parties, and the theory adopted by the referee in stating the account in the-first instance as applicable to the parties’ rights. This difference in result did not in any respect affect the correctness-of the items entering into the account, and it was finally properly stated and approved by 'the court. We must hold upon the record that no ground exists to disturb the findings and judgment of the trial court. By the Court. — Judgment affirmed.