112 to be entered thereon in the same manner.1 When a referee reports his decision upon the whole case, his report stands as the decision of the court. When he reports the facts only, his report is a special verdict.113 But not so as to conclusions of fact drawn from the pleadings alone.114 When the order of reference requires the referee to try the issues and report his finding thereon, the referee may make a general finding upon the facts put in issue, stating the facts according to their legal effect.115 Where an action at law is tried by a referee, who is charged to find the facts and the law, he should find the facts in detail; and where there is a counterclaim filed in the action, he should state clearly what items he allowed for and against each party.116 The report of a referee and the award of an arbitrator are in all essentials the same.117 The findings of facts by a referee are presumed to be based on sufficient evidence, where no statement on motion for a new trial appears in the transcript on appeal.118 Where a cause is tried before a referee having authority to hear and decide the whole issue, his findings of fact upon oral and documentary evidence are entitled to the same consideration as the verdict of a jury or the findings of the court based upon like evidence produced in open court,119 but there must be evidence to support it.120 § 1306. Decree upon report. In a suit in chancery it is perfectly competent for the judge who tried the cause, after exceptions have been filed to the report of a referee upon the facts, and the report set aside for cause shown, to take up the testimony reported by the referee, find the facts, and render a decree in the cause.121 In proper cases, the report may take the form of a finding upon trial by the court, with modifications of v. Vandenberg, 30 Cal. 11; Stephens v. Parvin, 33 Colo. 60, 78 Pac. 688; Johnson v. Johnson, 18 Colo. App. 493, 72 Pac. 604; Quirk v. Clark, 7 Mont. 31, 14 Pac. 669; Bartel v. Mathias, 19 Or. 482, 24 Pac. 918. 112 Peck v. Alexander, 40 Colo. 392, 91 Pac. 38; Colo. Code, 212. 113 Harris v. San Francisco Sugar Refining Co., 41 Cal. 393. 114 Simmons v. Sisson, 26 N. Y. 264. 115 Hihn v. Peck, 30 Cal. 280. the reading. Findings of fact made by a referee in an equity case may be set aside and others made by the court.122 § 1307. Exceptions.-The findings of the referee or commissioner may be excepted to and reviewed in like manner as if made by the court. 123 Exceptions must be taken during the progress of the trial to the rulings of the referee in the same manner as before a court.124 Exceptions to the report must be specific, not general,125 and called to the attention of the trial court.126 If there be no exceptions embodied in the report showing that the referee erred in fact, and the rule of law by which he arrived at his conclusions being not disclosed, the court cannot disturb the report, and an order granting a new trial will be reversed.127 But if it appear that the evidence was insufficient to justify the decision, the court may grant a new trial.128 When a case is referred to a referee, under the statute, to hear and determine the issues of law and of fact, and report the same to the court, and he makes his report, wherein no errors of law or of fact occur, and no exceptions are taken, the court below should not set aside the report and grant a new trial.129 § 1308. Setting aside report of referee-Error must be apparent. The report of the referee cannot be attacked, except for error or mistake of law, apparent on its face, or by motion for new trial, upon exceptions taken at the trial, or the evidence certified. And the party objecting must see that such testimony as he relies on is properly certified.130 The onus is upon the party who alleges that error was committed to make it appear that such was the case.131 The error complained of, whether 122 Pratsch v. Aberdeen Packing Co., 7 Wash. 346, 35 Pac. 123. 123 Cal. Code Civ. Proc., § 645; Porter v. Barling, 2 Cal. 72. 124 Phelps v. Peabody, 7 Cal. 50; Branger v. Chevalier, 9 Cal. 353; Belmont v. Smith, 1 Duer, 675. See Tacoma Grocery Co. v. Draham, 8 Wash. 263, 40 Am. St. Rep. 907, 36 Pac. 31. 125 Newell v. Doty, 33 N. Y. 83; Graham v. Chrystal, 1 Abb. Pr. (N. S.) 121; Pearson v. Knapp, 1 Myl. & K. 312; Ward v. Fitzhugh, 7 Sim. 42; Gompertz v. Best, 1 Y. & C. 114. But see Woods v. Woods, 10 Sim. 197; Moore v. Langford, 6 Sim. 323; Cullen V. Dean of Kildare, 2 Ir. Ch. 133; Stocken v. Dawson, 2 Phil. 141. 126 Neher v. Armijo, 11 N. Mex. 67, 66 Pac. 517. 127 Tyson v. Wells, 2 Cal. 122. See Wilson v. Davis, 1 Mont. 183. 128 Cappe v. Brizzolara, 19 Cal. 607. 129 Grayson v. Guild, 4 Cal. 125. 130 Goodrich V. Mayor etc. of Marysville, 5 Cal. 430. 131 Mead v. Bunn, 32 N. Y. 275. of law or fact, must appear on the face of the award or report.132 For error in the report of a referee, the same may be set aside, and a new reference ordered.133 § 1309. Grounds of objection.-A court cannot interfere and set aside the report of a referee upon the same ground as it will proceed to set aside the verdict of a jury.134 When the alleged error consists in the final conclusion of law or fact drawn from the testimony, and the evidence is certified to the court by the referee, the proper course is to move to set aside the report, and for a new trial.135 If a report does not pass upon all the issues referred, it should be set aside,136 and so should a report which does not find the issues of law and fact separately.187 § 1310. Insufficient grounds. It is error for the court to set aside the report of a referee, upon an examination of testimony which was not properly before it.138 The court will not disturb the award of an arbitrator or report of a referee, unless the error complained of, whether of law or fact, appear on the face of the award or report. 139 The defect of a plea, though it be bad on demurrer, is not sufficient reason to set aside the report after submission to a referee.140 The decision of a referee upon a question of fact will not be set aside where the evidence is conflicting.141 The findings of a referee will rarely be disturbed on appeal when there are circumstances tending to weaken the testimony of the defeated party or to sustain the findings as made.142 Where there is a large mass of contradictory evidence reported, it will be presumed that the court weighed the evidence properly in setting aside the finding of the facts by the referee.143 It would be gross abuse of discretion for a court to 132 Tyson v. Wells, 2 Cal. 122. 133 Hidden v. Jordan, 32 Cal. 397. 134 McHenry v. Moore, 5 Cal. 90; Dorlon v. Lewis, 9 How. Pr. 1; Roosa v. Saugerties etc. Turnpike Co., 12 How. Pr. 297. 135 Branger v. Chevalier, 9 Cal. 353. 136 Pratt v. Stiles, 9 Abb. Pr. 156, 17 How. Pr. 211. 137 Hulce v. Sherman, 13 How. Pr. 411; Church v. Erben, 4 Sandf. 691. 138 Goodrich V. Mayor etc. of Marysville, 5 Cal. 430. 139 Tyson v. Wells, 2 Cal. 122. 140 Ritchie v. Davis, 5 Cal. 453. 141 Brady v. Brown, 20 Cal. 520; Hummel v. Friese, 24 Or. 586, 29 Pac. 438; Lovejoy v. Chapman, 23 Or. 571, 32 Pac. 687; Bruce v. Phoenix Ins. Co., 24 Or. 492, 34 Pac. 16. 142 Id. See Fahie v. Lindsay, 8 Or. 474; Merchants' Nat. Bank v. Pope, 19 Or. 35, 26 Pac. 622; Paddock v. Balgord, 2 S. Dak. 100, 48 N. W. 840; Hannaman v. Karrick, 9 Utah, 236, 33 Pac. 1039. 143 McHenry v. Moore, 5 Cal. 90. set aside a report of a referee, correct in all its parts, without any other apparent reason than the mere volition of the judge.1** § 1311. Motion to set aside. The time within which a notice of motion must be filed to set aside the report of a referee, and a statement be prepared for that purpose, depends on the character of the reference. If it be special, the report has the effect of a special verdict;145 if general, it stands as the decision of the court; judgment may be entered thereon, and exceptions taken and reviewed, as if the action had been tried by the court;146 but if it be of a collateral matter, not an issue raised by the pleadings, it does not take the place of a special verdict, nor is it binding on the court until adopted, nor is a motion for a new trial necessary in order to bring it up for review.147 Failure to appear and prosecute a motion to set aside the report of a referee, and for new trial, is an abandonment of the motion.148 § 1312. Power of court.-A court has power to set aside the report of a referee, and grant a new trial, on the ground that the evidence before the referee did not justify his decision.149 Findings of fact made by a referee in an equity case may be set aside and others made by the court. Where the court sets aside the report of a referee in whole or in part, and elects to find the facts and determine the law itself, it is its duty to find the facts and conclusions of law in the same manner as it is required to do when it tries a case without the intervention of a jury.150 But exceptions to the ruling of the referee must have been taken at the trial. If the referee reports the facts upon all the issues, but draws an erroneous conclusion of law from the facts found, the court, before a judgment is entered, may set aside the conclusions of law, and direct a proper judgment to be entered.151 It is not good practice, where a ref 144 Goodrich V. Mayor etc. of Marysville, 5 Cal. 430. 145 Cal. Code Civ. Proc., § 645. 146 Cal. Code Civ. Proc., §§ 644, 645; Peabody v. Phelps, 9 Cal. 213; Harris v. San Francisco S. R. Co., 41 Cal. 393. 147 Id. As to time within which notice of motion must be given to set aside report, see Cal. Code Civ. Proc., § 659. 148 Mahoney v. Wilson, 15 Cal. 43; Frank v. Doane, 15 Cal. 303; Green v. Doane, 15 Cal. 304. 149 See Cal. Code Civ. Proc., § 657; Cappe v. Brizzolara, 19 Cal. 607. 150 Pratsch v. Aberdeen Packing Co., 7 Wash. 355, 35 Pac. 123. See Merchants' Nat. Bank v. Pope, 19 Or. 35, 26 Pac. 622. 151 Calderwood v. Pyser, 31 Cal. 333; Scott v. Pilkington, 15 Abb. Pr. 280; Merritt v. Millard, 10 Bosw. 309. eree has reported findings of facts, for the court to strike out a finding made by the referee and substitute one of its own; but if the appellant is not prejudiced by such action, it will not be sufficient. ground to award a new trial.152 The court will not interfere with the exercise of a sound discretion by the referee in a matter properly resting in such discretion; e. g. order him. to open the case of either party to receive additional testimony after the case is closed.153 § 1313. Judgment on report-Duty of court.-A reference is a substitution for a jury, and a judgment should be had on the report as upon a verdict, and a motion to set aside the report is necessary before the appellate court can be required to examine the report and set it aside.154 So with the report of a referee upon conflicting testimony, which will not be set aside upon an appeal from an order refusing to grant a new trial.155 If the report of a referee under the statute contain sufficient on which to base a judgment, it is the duty of the court below. to enter judgment in accordance with it." Where a referee in dissolution of a partnership finds certain property in his hands, belonging to the partners in equal shares, to be disposed of by the court according to their interests, and makes no disposition of such property in his report, it is a failure to find upon a material issue, and judgment should not enter thereon.157 A mandamus lies to compel the judge of a district court to enter judgment on the report of a referee.158 156 § 1314. Grounds for appeal.-An order overruling an exception to the report of a referee, taken on the alleged ground that the report did not find the facts as required by the order of reference, may be reviewed on an appeal from a final judgment.159 When an erroneous judgment has been entered in the court below in favor of the plaintiff on the report of a referee, and the report has been erroneously set aside, and a new trial granted, from which action the plaintiff appeals, the supreme court will correct both errors at the same time, in a chancery 152 Pratalongo v. Larco, 47 Cal. 378. 153 Dow v. Darragh, 10 Jones & Sp. 80. 154 Gunter v. Sanchez, 1 Cal. 48. 229. 156 Headley v. Reed, 2 Cal. 322. 157 Clark v. Hewitt, 136 Cal. 77, 68 Pac. 303. 158 Russell v. Elliott, 2 Cal. 246. As to entry of judgment on report of referee, see Bowie v. Borland, 68 Cal. 233, 9 Pac. 79. 159 Hihn v. Peck, 30 Cal. 280. |