56

the action was in a previous trial left to a jury. An offer to admit upon the trial the items of an account upon stipulation will defeat the motion.57 Where there is reasonable ground for controversy as to whether the issues involve an accounting, the decision of the lower court to refer the matter will not ordinarily be disturbed.58

§ 1296. Notice of motion.-In general, a notice of motion is necessary, though the court may, upon its own motion, order a reference on the hearing without any formal motion or previous notice.59

§ 1297. Number and residence of referees.-A reference may be ordered to any person or persons, not exceeding three, agreed upon by the parties. If the parties do not agree, the court or judge must appoint one or more referees, not exceeding three, who reside in the county in which the action or proceeding is triable, and against whom there is no legal objection, or the reference may be made to a court commissioner of the county where the cause is pending.60 In New York, by agreement of parties, there may be five in number."1 When there are three referees, or three arbitrators, all must meet, but two of them may do any act which might be done by all.62

§ 1298. Objections to referees.-Objections to the appointment of any person as referee may be made on grounds substantially the same as challenges to jurors for cause, except that the prohibited degree of relationship is the third instead of the fourth, and also a modification in the sixth ground.63 And objections so taken must be heard and disposed of by the court; affidavits may be read, and any person examined as a witness in reference to such objections. The fact that the referee, in proceeding supplementary to execution, was the clerk of the

56 Brown v. Bradshaw, 1 Duer, 635,

8 How. Pr. 176.

57 Mullin v. Kelly, 3 How. Pr. 12. 58 Salem Light etc. Co. v. Anson, 41 Or. 562, 67 Pac. 1015, 69 Pac 675.

59 Kelly v. Searing, 4 Abb. Pr. 354. See Hall v. Superior Court, 69 Cal. 79, 10 Pac. 257.

60 Cal. Code Civ. Proc., § 640; Nev. Comp. Laws, par. 3281, § 186.

64

61 N. Y. Code Civ. Proc., § 1025.

62 Cal. Code Civ. Proc., § 1053; N. Y. Code Civ. Proc., § 1026; Jackson v. Ives, 22 Wend. 637.

63 Cal. Code Civ. Proc., § 641, as amended 1907; Or. B. & C. Codes, § 164; Nev. Comp. Laws, par. 3282, § 187; Idaho Rev. Codes, § 4417; Ariz. Laws, § 187.

64 Cal. Code Civ. Proc., § 642; Nev. Comp. Laws, par. 3283, § 188.

attaching creditor is not any considerable evidence of fraud."5 The California statute concerning references does not require that referees should be sworn;66 and in New York the oath may be waived. Omission to take the oath is an irregularity, which is waived by going to trial without objection.08

67

§ 1299. Partition, action of.-The appointment of referees to try all the issues in actions for partition is governed by the general provisions of the Practice Act, and can only be made. upon the agreement of all the parties. It is erroneous for the court to order a reference for the purpose of trying all the issues in an action for partition in which there is a party whose name is unknown, and whose consent cannot, therefore, be procured, and all proceedings thereon must fall. The court, in case of lienholders, of record, on property in controversy, who have not been made parties to the suit, must appoint a referee to determine the extent of their interest.70

73

69

§ 1300. Power of referees. Under a reference to try issues and report a judgment, the referee can exercise all the powers of a judge in relation to the trial of a cause referred to him,"1 in so far as they are conferred by the stipulation or order for reference.72 But the order must be entered to confer such power fully. A referee has power to dismiss plaintiff's complaint on his failure to appear, or to prosecute after appearance.* He may give judgment on the pleadings for plaintiff where the answer does not constitute a defense.75 A court commissioner has no jurisdiction to hear a motion or to make any order in reference to the dissolution of an injunction, unless the motion is referred to him by the court. It is the business of a referee

65 Adams v. Hackett, 7 Cal. 187. 66 Sloan v. Smith, 3 Cal. 406. In New York and Ohio, it is otherwise. Ohio Code, § 288; N. Y. Code, § 1016. 67 Id. See Katt v. Germania Fire Ins. Co., 26 Hun, 429; Leyde v. Martin, 16 Minn. 38.

68 Logan v. Brown, 20 Okla. 334, 95 Pac. 441.

69 Hastings v. Cunningham, 35 Cal. 549; Prac. Act, §§ 182, 183; Cal. Code Civ. Proc., §§ 638, 639.

70 Cal. Code Civ. Proc., § 761, as amended 1907.

P. P. F. Vol. I-53

76

71 Plant v. Fleming, 20 Cal. 92; Woodruff v. Dickie, 31 How. Pr. 164. See Stimson v. Estes, 3 Or. 521; Bohlman v. Coffin, 4 Or. 313; Thompson v. Patterson, 54 Cal. 542; Reever v. White, 8 Utah, 190, 30 Pac. 685.

72 Idaho Placer Min. Co. v. Green, 14 Idaho, 294, 94 Pac. 161.

73 Bonner v. McPhail, 31 Barb. 106. 74 Morange v. Meigs, 54 N. Y. 207. 75 Schuyler v. Smith, 51 N. Y. 309, 10 Am. Rep. 609.

76 Stone v. Bunker Hill Co., 28 Cal. 497.

77

appointed to take evidence to take all that is offered, and leave it to the court, on the hearing of the matter, to determine what is or is not competent ;" and if objections taken before the referee are not renewed before the court on trial, and ruling had thereon, they are not available on appeal." Referees have no power to allow pleadings to be amended after a case has been submitted to them, and cannot make valid findings upon questions not pleaded. It is directly otherwise in New York practice. To determine the power of a referee, the object for which he was appointed, or the nature of the reference, must be continually kept in view.82 A referee cannot delegate his authority, nor try a cause by deputy.83

80

81

§ 1301. Compensation of referee. The referee's fee is not fixed at five dollars per day, but is within the discretion of the court, and section 768 of the California Code of Civil Procedure prevails over section 1028 thereof.84 In the partition of seventeen tracts of land, of the value of eight hundred thousand dollars, where three referees were appointed, each of whom consumed about one year in doing the work, and each testified that their services were reasonably worth seven thousand five hundred dollars each, an allowance of five thousand dollars is not excessive. For thirty days' service as referee, an allowance of two thousand five hundred and fifty dollars should be cut down to one thousand dollars.8

85

86

§ 1302. Title.-References may be ordered to examine title,e. g. in an action for specific performance, but not, however, before judgment, if any other question than that of title be in dispute, unless all other questions are frivolous.88 And, after

87

77 Scott v. Williams, 23 How. Pr. 393, 14 Abb. Pr. 70.

78 Fox v. Moyer, 54 N. Y. 125.
79 De La Riva v. Berreyesa, 2 Cal.

195.

80 Sutton v. Clarke, 40 Or. 508, 67 Pac. 742.

81 See N. Y. Code Civ. Proc., § 1018; superseding Billings v. Baker, 6 Abb. Pr. 213.

82 Betts v. Letcher, 1 S. Dak. 182, 46 N. W. 193.

83 Shultz v. Whitney, 9 Abb. Pr. 71, 17 How. Pr. 471; Heyer v. Deaves, 2 Johns. Ch. 154.

84 Mesnager v. De Leonis, 140 Cal. 402, 73 Pac. 1052.

85 Treadwell v. Treadwell, 134 Cal. 158, 66 Pac. 197.

se Jordan v. Western Union Tel. Co., 69 Kan. 140, 76 Pac. 396.

87 Blyth v. Elmhirst, 1 Ves. & B. 1; Paton v. Rogers, 1 Ves. & B. 351; Morgan v. Shaw, 2 Meriv. 138; Portman v. Mill, 2 Russ. 570; Gordon v. Ball., 1 Sim. & St. 178.

88 Wood v. Machu, 5 Hare, 158; Boyes v. Liddell, 1 Y. & C. 133; Boehm v. Wood, 1 Jac. & W. 419; Withy v. Cottle, 1 Sim. & S. 174,

some conflict of decisions, it appears to be settled that the order may contain a direction that the referee may ascertain not only whether there is a good title, but when such title was perfected.89

§ 1303. Conduct of the trial.-A trial before referees should be conducted in the same manner as before a court;90 and the evidence should be embodied in a bill of exceptions, and certified by the referees.91 Where a reference is had to take an account, it is within the discretion of the referees to open the case, after it is once closed, for the purpose of receiving additional testimony, even after they have announced their decision, though not after they have signed their report and given notice thereof to either party; nor after it has been filed;95 nor has a referee a right to bring in and file an additional or amended report.

92

93

97

Where a referee admits the testimony of a witness against the objection of a defendant, such testimony cannot afterwards. be thrown out without first giving to the adverse party the opportunity of otherwise supplying the excluded testimony," unless no possible evidence would be admissible upon the point,98 or unless proper warning be given to the parties at the time it is received that it will be stricken out, unless other evidence necessary to make it valid is furnished." Referees should observe the rules of evidence.100 Written documents, especially when proved by being authenticated as provided by statute, may be put in evidence at the hearing.101

Turn. & R. 78. As to what order of reference may contain on examination of title, see Bennett v. Rees, 1 Keen, 405; Anonymous, 3 Mad. 495; Hyde v. Wroughton, 3 Mad. 279; Jennings v. Hopton, 1 Mad. 211; overruling Gibson v. Clark, 2 Ves. & B. 103. Compare Luban v. Lightbody, 8 Price, 606. See Birch v. Haynes, 2 Meriv. 444.

89 Bennett v. Rees, 1 Keen, 405; Hyde v. Wroughton, 3 Mad. 279.

90 Goodrich v. Mayor etc. of Marysville, 5 Cal. 430; Phelps v. Peabody, 7 Cal. 50.

91 Goodrich v. Mayor etc. of Marysville, 5 Cal. 430; Poire v. Rocky Mountain T. Co., 7 Colo. 588, 4 Pac. 1179.

92 Marziou v. Pioche, 10 Cal. 545; Delafield v. De Grauw, 9 Bosw. 1;

Duguid v. Ogilvie, 3 E. D. Smith, 527;
Cleaveland v. Hunter, 1 Wend. 104.

93 Ayrault v. Sackett, 17 How. Pr. 507; affirming 17 How. Pr. 461; Pratt v. Stiles, 9 Abb. Pr. 154.

94 Shearman v. Justice, 22 How. Pr. 241.

95 Niles v. Price, 23 How. Pr. 473. 96 Headley v. Reed, 2 Cal. 325. 97 Monson v. Cooke, 5 Cal. 436; Meyers v. Betts, 5 Denio, 81; Clussman v. Merkel, 3 Bosw. 402; Allen v. Way, 7 Barb. 585; Johnson v. MeIntosh, 31 Barb. 267.

98 Brown v. Colie, 1 E. D. Smith, 265.

99 Brooks v. Christopher, 5 Duer, 216.

100 De La Riva v. Berreyesa, Cal. 195.

101 Baker v. Woodward, 12 Or. 3,

103

104

§ 1304. Findings of referee. The report of a referee must separately state the facts found and the conclusions of law thereon. The report must be made within twenty days after the testimony is closed.102 Under the former California statute, this was held to be directory merely, and a failure to file within the time neither invalidates the report nor a judgment thereon.1 The court may extend the time within which to file the report;10 and if no objection is made to the time of filing a report, it will be presumed that such objection is waived.105 In Nevada, it is held that if a referee fails to make his report within the time. ordered by the court, he may be removed on the application of either party, but if not removed his authority does not expire.100 In New York, also, it has been held that the requirement as to the time within which the report must be filed was absolute, but the section of the New York code (§ 1019) differs materially from the California Code of Civil Procedure (§ 643). Under a reference upon all the issues, the report must pass upon them all,107 except those upon which no evidence is offered. 108 Everything necessary to support the judgment must be inserted in the statement of facts;109 nothing must be left to inference, though a finding of fact may be interpreted by a finding of law.110

§ 1305. Sufficient findings.-The decision of a referee stands on the same footing as that of a judge or the verdict of a jury, and though unsatisfactory will be conclusive on a question of fact, if there is any evidence to support it, and a judgment is

6 Pac. 173. As to objections to evidence, see Illstad v. Anderson, 2 N. Dak. 167, 49 N. W. 659.

102 Cal. Code Civ. Proc., § 643; N. Y. Code Civ. Proc., § 1022; Lambert v. Smith, 3 Cal. 408; Roberts v. Carter, 28 Barb. 462, 17 How. Pr. 524; Church v. Erben, 4 Sandf. 691; Tilman v. Keane, 1 Abb. Pr. (N. S.) 23; Wright v. Sanders, 28 How. Pr. 395; Niles v. Battershall, 27 How. Pr. 381; Toll v. Whitney, 18 How. Pr. 161. As to findings by referee, see Park v. Mighell, 3 Wash. 737, 29 Pac. 556; Bigne v. David, 17 Or. 362, 21 Pac. 52; Williams v. Gallick, 11 Or. 337, 3 Pac. 469; Lee Sack Sam v. Gray, 104 Cal. 243, 38 Pac. 85.

103 Keller v. Sutrick, 22 Cal. 471.

111

104 Clark v. Bank of Hennessey, 14 Okla. 572, 79 Pac. 217.

105 Bradford v. Cline, 12 Okla. 339, 72 Pac. 369.

106 Rhodes v. Williams, 12 Nev. 21.

107 Solomon v. Maguire, 29 Cal. 227; Rogers v. Beard, 20 How. Pr. 282; Van Steenburgh v. Hoffman, 6 How. Pr. 492.

108 Ingraham v. Gilbert, 20 Barb. 151; Patterson v. Graves, 11 How. Pr. 91.

109 Tomlinson v. Mayor of New York, 23 How. Pr. 452; Hickok v. Bliss, 34 Barb. 321.

110 Smith v. Devlin, 23 N. Y. 363. 111 Knowles v. Joost, 13 Cal. 620; Muller v. Boggs, 25 Cal. 179; Peck