160 case. If the commissioner to whom a case has been referred to take an account commits an error at the threshold which unsettles the account, the court is not bound to go over the account and correct the error, but may set aside the report and again refer the case.161 The supreme court will not review a judgment entered on the report of a referee, if no objection was made to it in the court below.162 So where the testimony is conflicting, the supreme court will not disturb the findings.163 Nor will it review the findings to ascertain whether they are contrary to the evidence except on appeal from an order denying a new trial.164 An order setting aside a report of a referee appointed to take an account is merely interlocutory, and not subject to appeal before judgment.165 So of an order setting aside a finding in a divorce case, and sending the case back to the referee for further testimony.166 It seems that a stay of proceedings granted on an appeal from an order of reference is proper.' No appeal lies from an order setting aside the report of a referee upon an application for a writ of mandate.168 167 170 § 1315. May be set aside.-Judgment is entered upon the report of a referee as matter of course, and the only mode of taking advantage of it is by moving to set it aside, as on motion for a new trial.169 Judgment entered upon findings of the referee that do not cover all the issues pleaded should be set aside." After rendition of judgment, the court may award a new trial, and set aside the report for any reason that would be sufficient to set aside the report of any arbitrator.171 The provisions of the Practice Act relating to new trials are general, and vest in courts the same power in cases tried by a referee as in other cases.172 But those provisions only apply in case of the trial of an issue raised by the pleadings; as to collateral matters referred, no motion for new trial is necessary." 160 Grayson v. Guild, 4 Cal. 125. 161 Hidden v. Jordan, 32 Cal. 397. 162 Porter v. Barling, 2 Cal. 72. 163 Muller v. Boggs, 25 Cal. 179. 164 Peck v. Vandenberg, 30 Cal. 11. 165 Johnston v. Dopkins, 6 Cal. 83. 166 Baker v. Baker, 10 Cal. 528. 167 Smith v. Pollock, 2 Cal. 94. 168 Thomas v. Smith, 1 Mont. 21. 169 Headley v. Reed, 2 Cal. 322; Sloan v. Smith, 3 Cal. 406. See Faulk 173 ner v. Hendy, 103 Cal. 20, 36 Pac. 1021. 170 Sutton v. Clarke, 40 Or. 508, 67 Pac. 742; Clarke v. Hewitt, 136 Cal. 77, 68 Pac. 303. 171 Sloan v. Smith, 3 Cal. 406; Headley v. Reed, 2 Cal. 322. 172 Cappe v. Brizzolara, 19 Cal. 607; Cal. Code Civ. Proc., § 656; Prac. Act. § 192. 173 Harris v. San Francisco S. R. Co., 41 Cal. 393. FORMS IN TRIAL BY REFEREE. § 1316. Affidavit by defendant to move for reference of an action involving a long account. C. D., being first duly sworn, says that he is the defendant in this action; that the same is brought by the plaintiff on an account for goods, wares, and merchandise, alleged to have been heretofore sold and delivered to this defendant; that issue was joined herein on the . . . day of . . ., 19 . ., by the service of the defendant's answer, in which the defendant denies the sale and delivery of a part of the said goods and merchandise, and alleges payment as to the balance thereof, and also alleges as a counterclaim that the plaintiff is indebted to this defendant upon an account for work, labor, and services rendered. That by the bill of particulars of the plaintiff's claim, heretofore served herein, the same contains . . . items, all of which [or, state how many] this defendant, by his answer, controverts. That the items of this defendant's counterclaim embrace an account of . . . separate items, and that the trial of this issue will require the examination of a long account,-namely, the said account of the said plaintiff, and also of this affiant as aforesaid. That no difficult questions of law are, to the best of this afliant's knowledge and belief, involved in the said issues in this action. [JURAT.] C. D. § 1317. Order to show cause why reference should not be ordered. [TITLE] Form No. 414. Upon the affidavit of A. B., and on reading the pleadings on file herein, and on motion of L. M., Esq., attorney for defendant: Ordered, that the . . . herein show cause, at the courthouse in the city of . . ., in said county, on the . . . day of ..., 19. ., at the opening of court on that day, or as soon thereafter as counsel can be heard, why the order of reference applied for herein should not be granted. That a copy of this order and said affidavit be served on the plaintiff's attorney, at least . . . before the time fixed for the hearing of such motion. O. P., Circuit Judge. § 1318. [TITLE.] Affidavit to oppose motion, denying account. C. D., being duly sworn, says that he is the defendant in this action, and that the issue joined herein will not require the examination of a long account within the meaning of the statute. That this action is brought to recover for a bill of goods sold by plaintiff to defendant; and that all of said goods were sold at one time, and as one transaction, and the alleged credit is a payment made by defendant at said time, and then deducted. from the amount to be due from defendant to the plaintiff; and there are no other items of charge or credit involved in the issues herein. [JURAT.] C. D. § 1319. Affidavit to oppose motion where fraud is set up. Form No. 416. [Commencement as in form No. 415.] That this action is brought upon an insurance policy alleged to have been made by defendants; and that the only items of account are the items of damage, which plaintiff claims he has sustained by a peril insured against. That the defense [or, one of the defenses] set up by the defendants is fraud on the part of the plaintiff, in [here briefly disclose it], as more fully appears by reference to their answer herein. [JURAT.] C. D. § 1320. Affidavit to oppose motion where there are difficult questions of law. Form No. 417. [Commencement as in form No. 415.] That he has fully and fairly stated the case in this cause to his counsel O. P., who resides at No. . street, in the city of ; and that the investigation and trial of the issues of fact in this cause will, as deponent is advised by said counsel, after such statement, and believes, require the decision of difficult questions of law. That [here state, unless the moving affidavits correctly state it, the nature of the issue, and that] the following will be insisted on on behalf of said plaintiff: [Here briefly state deponent's points of law.] And deponent is informed and believes that the defendant's counsel will urge [here briefly state his anticipated points]; which points, as deponent is advised by his said counsel, are material to the cause, and are difficult, especially in their application to the facts of this case. [JURAT.] C. D. § 1321. Stipulation to refer. [TITLE]. Form No. 418. It is hereby stipulated and agreed by the parties to this action, that [the right of trial by jury be waived, and that] it be referred to R. F., Esq., of . . ., counselor at law, to hear, try, and determine the issues in this case; and that an order may be entered accordingly. [DATE.] A. B., Plaintiff's Attorney. § 1322. Order referring the cause, without motion. [TITLE.] Form No. 419. This cause coming on to be tried, and it appearing to the satisfaction of the court that it will require the examination of a long account: Ordered, that it be referred to R. F., Esq., of . . ., counselor at law, to hear, try, and determine the whole issues in this cause. [DATE.] By the Court: L. M., Judge. § 1323. Order of reference to take an account as to damages. [TITLE.] Form No. 420. This cause coming on to be tried, and it appearing that the taking of an account is necessary for the information of the court before judgment thereupon, on hearing counsel for the respective parties: Ordered, that it be referred to R. F., Esq., as sole referee,* to ascertain and report [the amount of wharfage which should be allowed to the plaintiffs for the breach of the covenant by the defendants, contained in the grant mentioned in the pleadings]. And for such purpose he is to ascertain [etc., specifying the principles on which the account is taken]. And he is to compute the interest on such amount, and state the same in his report. And upon such report being confirmed according to the practice of this court either party may bring on the cause for final judgment. [DATE.] § 1324. Order of reference to take an account between parties to a mortgage, in an action to redeem. Form No. 421. [As in form No. 420 to the star (*) continuing:] to take and state an account between the several parties to this action, in the manner and under the directions following, to-wit: That he compute the amount due upon the bond and mortgage executed by the plaintiff to the defendant Z., mentioned in the complaint, from the . . . day of . . ., 19 down to which time the interest appears to have been paid. That he ascertain [from the deeds, or otherwise] the consideration paid by the purchasers and defendants, X. and Y., from the said Z., at the auction sale of the said premises, made on the . . . day of . . ., 19 [proceeding to state the mode of apportioning the redemption money among them]. That he open and state an account with each of such defendants in which he is to allow such party his proportion of the mortgage money so ascertained as aforesaid, with interest; and also all taxes and assessments paid by him or those under whom he claims, upon the lots now held by him; and also any sum paid for necessary repairs upon the same, and any amount expended |