Dietz v. Lymer

THAYER, District Judge, after stating the facts as above, delivered the opinion of the court. The defendant below has assigned for error the action of the circuit court in sustaining the several motions to make the answer more certain, and to strike out parts of the answer because they were too indefinite. He has also assigned for error the action of the trial court in requiring the defendant to pay certain costs as a condition precedent to filing an amended answer after the referee’s report had been returned into court. These assignments of error cannot be noticed in this court, for the reason that they relate to matters in which the action of the trial court was purely discretionary, like its action upon a motion for a new trial or a motion for a continuance. In toe federal appellate courts the propriety of-orders of this nature will not be reviewed on a writ of error. Doswell v. De La Lanza, 20 How. 29, 32; Mulhall v. Keenan, 18 Wall. 342; Railroad Co. v. Howard, 1 C. C. A. 229, 49 Fed. 206; Railway Co. v. Heck, 102 U. S. 120; Davis v. Patrick, 6 C. C. A. 632, 57 Fed. 909, 913, and citations. Moreover, motions of this character form no part of the record, unless they are made such by a bill of exceptions; and no bill of exceptions was signed or allowed, so far as the record shows, either when the orders in question were made or afterwards. Jefferson City v. Opel, 67 Mo. 394; Marquis v. Clark, 64 Mo. 601. It is further assigned for error that the circuit court improperly sustained the plaintiff’s exceptions to portions of the referee’s report, and erroneously entered a judgment against the defendant upon said report for the sum of $787.24. The last-mentioned assignment is met and overcome by the decision of the supreme court of the United States in Investment Co. v. Hughes, 124 U. S. 157, 8 Sup. Ct. 377. In that case, as in the one at bar, there was no allusion made to the state code of procedure in the order of. reference, and for that-Teason it seems to have been held that the reference should be regarded as a common-law reference, and not as a reference under the statute of the state regulating references. Furthermore, there is no bill of exceptions in the present record, and tor that reason the testimony taken by the referee and by him reported 795 is not before us. Xeitlier does if appear from the record that the action of tlie circuit court: in entering a judgment for the plaintiff on the referee’s report, after it had been modified, was excepted to or challenged on the ground that the circuit court had no> authority to enter such a judgment. Tt is true that in the judgment entry there is a notation to- the effect, that “the defendant, by his counsel, now excepts,” but on what ground the exception was predicated we are not advised. It may have been urged, and such, was most likely the contention of the defendant in the circuit, court, that the judgment was erroneous, because tbe court had erred in overruling some of the referee’s findings of fact. At all events, there is nothing in the record which indicates that the defendant contested the right of the court, on the hearing of (he exceptions, to enter a judgment against (lie defendant without recommitting the case to the referee. For aught that appears, the defendant simply contended that the referee’s report should be confirmed, and that his conclusion of law should be adopted, because all of his findings were sustained by the testimony, and that the judgment was erroneous because the court did not adopt that view. In the light of what has been said, we are unable to distinguish the case at bar from tbe one heretofore cited,—Investment Co. v. Hughes, supra. In that, case it appears to have been ruled that the record presented no question which the supreme court could review on writ: of error, because there was no bill of exceptions, no- written stipulation waiving a jury, and because no specific exception had been taken to tbe judgment at the time it was entered, on the ground that the trial court should have recommitted the case to the referee when the exceptions to his report were sustained. It, is obvious, wo think, that the same defects exist in ¡he present record; and, following the ruling thus made in the case heretofore cited, the judgment of the circuit court must be, and tbe same is hereby, affirmed.