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4. The order of the referee in the proceedings supplementary should state simply that the property described should be applied towards the satisfaction of the judgment, in such manner as the Court should direct. Adams v. Hackett, 7 Cal. 202.
5. Equity suits may be referred without consent.—The Court may order a reference in equity cases without consent of parties. Smith v. Rowe, 4 Cal. 7.
6. Statute is in aid of the common law.-Our statute concerning referees is in aid of the common law remedy by arbitration, and does not alter its principles. Tyson v. Wells, 2 Cal. 122.
7. Generally.—The consent of a party to an order of reference must be in writing, or entered on the minutes. Smith v. Pollock, 2 Cal. 92.
8. An order of reference cannot be made without the consent of the adverse party. Benham v. Rowe, 2 Cal. 261.
9. Where an entry on the minutes recites that “the parties came by their attorneys, and defendant, by his attorney, moved the Court that the cause be referred :" Held, that such a reference was made on the appellant's motion, and in one of the modes prescribed by law, “ by oral consent, in open Court, entered on the minutes.” * Bates v. Visher, 2 Cal. 355.
10. A stipulation to refer the whole matter, is a waiver of any objection that the motion for a new trial and to set aside the award was not made within the statute time. Heslep v. City of San Francisco, 4 Cal. 2.
11. The whole issue in divorce cases cannot, even by stipulation of parties, be referred; and where a reference is had, the referee cannot pass upon the testimony. If he make any statement or finding of facts, the Court is obliged to disregard it, and base its decree only upon the legal testimony taken. Baker v. Baker, 10 Cal. 527.
$ 183. Reference ordered on motion, in what cases.
When the parties do not consent, the Court may, upon the application of either, or of its own motion, direct a reference in the following cases :
1st. When the trial of an issue of fact requires the examination of a long account on either side ; in which case the referees may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein:
2d. When the taking of an account is necessary for the information of the Court before judgment, or for carrying a judgment or order into effect :
3d. When a question of fact, other than upon the pleadings, arises upon motion or otherwise, in any stage of the action ; or,
4th. When it is necessary for the information of the Court in a special proceeding.
1. Our statute, as to referring cases, applies solely to equity causes. The right of trial by jury in all common law actions is secured by the Constitntion of this State. Grim y. Norris, 19 Cal. 140.
2. Action, for balance of an account. Defense, payment by a promissory note. Replication, that the plaintiff was induced to receive the note by means of fraudalent representations : Held, that the case was not referable under the statute, without the written consent of both parties. Seamen v. Mariani, 1 Cal. 336.
3. In an action of law, the necessity of taking a long account will not authorize the Court to refer the case without the consent of parties. Grim v. Norris, 19 Cal. 140.
4. And even if one of the parties subsequently waived his objection to the reference, that will not be sufficient. Id.
5. The Court may order a reference to ascertain the damages sustained by reason of an injunction issued without a cause. Russell v. Elliott, 2 Cal. 245.
§ 184. Number of referees, qualifications, etc. A reference may he ordered to any person or persons, not exSec. 184. A reference may be ordered to any person or persons, not exceeding three, agreed upon by the lies.
If the parties do not parties. If the parties do not agree, the Court or Judge shall appoint one or more referees, not exceeding three, It one or more referees, not who reside in the county in which the action or proceeding is triable, and against whom there is no degal Inty in which the action or
; reference may be made Commissioner of the county where the case is pending. I there is no legal objection. proceeding is uraljic, anu uğwisata
See § 529.
$ 185. Either party may object; grounds of objection.
Either party may object to the appointment of any person as referee, on one or more of the following grounds :
1st. A want of any of the qualifications prescribed by statute to render a person competent as a juror.
2d. Consanguinity or affinity, within the third degree, to either party.
3d. Standing in the relation of guardian and ward, master and servant, employer and clerk, or principal and agent to either party; or being a member of the family of either party; or a partner in business with either party; or being security on any bond or obligation for either party.
4th. Having served as a juror, or been a witness on any trial between the same parties for the same cause of action.
5th. Interest on the part of such person in the event of the action, or in the main question involved in the action.
6th. Having formed or expressed an unqualified opinion or belief as to the merits of the action.
7th. The existence of a state of mind in such person evincing enmity against or bias to either party.
1. The fact that the referee, in the proceedings supplementary to execution, was the clerk of the attaching creditor, is not any considerable evidence of fraud, when the limited duties of the referee are considered. Adams v. Hackett, 7 Cal.
§ 186. Objections, how disposed of.
$ 187. Referees to report within ten days—effect of—how ex-
Their report upon the whole issue
; and the
be excepted to and reviewed in
When the reference is to
1. Referees, powers and duties of, trial.-Referees have no power to allow the parties to alter the pleadings after a case has been submitted to them. De la Riva v. Berregesu, 2 Cal. 195.
2. Referees should exclude items barred by the Statute of Limitations, if objected to. Id.
3. Where a reference is had to take an account, it is within the discretion of the referees to open the case, after it has been once closed, for the purpose of receiving additional testimony. The exercise of such discretion, except in case of gross abuse, will not be reviewed on appeal. Marziou v. Pioche, 10 Cal. 545.
4. The trial of a referee should be conducted in the same manner as before a
5. Hearsay and irrelevant testimony should be excluded by referees. De la Riva
6. Where a referee admits the testimony of a witness against the objection of
7. Report, how, when and for what, set aside. The report of a 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. Goodrich v. City of Marysville, 5 Cal. 430.
8. If the order of reference fails to direct a return of the evidence to the Court, the party objecting to the report must see that such testimony as he relies on is properly certified. Id.
9. Error in the report of a referee must be taken advantage of by written objections to entering judgment on it, or by motion for a new trial. Porter v. Barling, 2 Cal. 72.
10. When the alleged error consists in the final conclusion of law or facts 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. Branger v. Chevalier, 9 Cal. 362.
11. A reference is a substitution for a jury; and a judgment should be had upon their report as upon a verdict, and a motion to set aside the report of referees is necessary before the appellate Court be required to examine the report and set the same aside. Gunter v. Sanchez, i Cal. 48.
12. Judgment is entered as a matter of course on the report of a referee, and the
13. A report of a referee can only be set aside on account of fraud, gross error
14. Court has power to set aside report of referee, and grant new trial, on the ground that the evidence before the referee did not justify his decision. Cappe v. Briszolua, 19 Cal. 607.
15. A Court can 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. McHenry v. Moore, 5 Cal. 92.
16. The report of a referee upon conflicting evidence must be treated in the light of a verdict of a jury, and will not be disturbed in this Court upon an appeal from an order refusing to grant a new trial in the Court below. Ritchie v. Bradshaw, 5 Cal. 229.
17. Though a plea would be bad upon demurrer, yet if no objection be taken at the time, and the case be submitted to a referee, the defeat of the plea is not sufficient reason to set aside the report. Ritchie v. Davis, 5 Cal. 453.
18. If there be no exception taken to the ruling of a referee, and the rule of law by which he arrived at his conclusions be not disclosed, the Court cannot disturb the report, and an order granting a new trial in such case will be reversed. Tyson v. Wells, 2 Cal. 130; Grayson v. Guild, 4 Id. 125.
19. When a case is referred to a referee, under the statute, to hear and determine the issues of fact and of law, and report the same to the Court, and he makes his report, wherein no errors of law or fact occur, and no exceptions are taken, the Court below should not set aside the report and grant a new trial. Grayson v. Guild, 4 Cal. 125.
20. It would be a gross abuse of discretion for a Court to set aside a report of a referee, correct in all its parts, without any other apparent reason than the mere volition of the Judge. Goodrich v. City of Marysville, 5 Cal. 430.
21. 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. Id.
22. Report should state facts found, etc.—The report of a referee, like the finding of a Court, should state the facts found and the conclusions of law. Without this, the parties would be remediless, and their rights concluded, in many cases, by the arbitrary decision of a referee. Lambert v. Smith, 3 Cal. 409.
23. Cannot file an amended report.-A referee has no right to bring in and file an amended report, and the case must be reviewed with reference to the original report. Headley v. Reed, 2 Cal. 324.
24. Referee need not be sworn.—The statute does not require the referee to be sworn; consequently, the imposition of an oath by the Court would be of no effect other than to put it in their power to commit moral perjury, without being amenable to the law. Sloan v. Smith, 3 Cal. 407.
25. If the report of a referee is not made immediately after the close of the testimony, it is deemed excepted to. Headley v. Reed, 2 Cal. 324.
26. Exception to report.-Trials before a referee are conducted in the same manner as before Courts, and exceptions must be taken to the rulings of the referee, in the progress of the trial, in the same manner as they must be taken before a Court; and such exceptions must be embodied in the report of the referee, or made part thereof by his proper certificate. Phelps v. Peabody, 7 Cal. 50.
27. When the referee excludes proper or admits improper evidence, or does any act materially affecting the rights of either party, during the progress of the trial before him, then such party should except, and see that the exception is truly stated in the report. Branger v. Chevalier, 9 Cal. 353.
v 28. In suits in equity, where accounts are taken by the referee, exceptions to his report must be as specific as was required in the old chancery practice in stating an account before a master, and the old chancery practice is still in force in respect to all such cases. (22 Barb. 320.) Lawrence v. Fowler, 20 How. Pr. 407.
29. Variance between pleadings and proof.-Where there is a variance between the pleading and the proofs, on a trial before a referee, instead of dismissing the complaint, he should, if the evidence is sufficient, give his decision, leaving it to the discretion of the Court to amend the pleadings in support thereof. Hart v. Hudson, 6 Duer, 294.
30. May open report for further evidence. The delay of referees in making their report cannot be deemed the delay of the Court. They are presumed not to have concluded their deliberations until their report is signed; for meanwhile they may open it for further evidence. Kissam v. Hamilton, 20 How. Pr. 369.
31. Motion to set aside.-The time within which a notice of a motion must be filed to set aside the report of a referee, and a statement be prepared for that purpose, is regulated by section one hundred and ninety-five.
32. Failure to appear and prosecute a motion to set aside the report of a referee and for new trial, is an abandonment of motion, and the order made denying the motion for such failure to appear, is not the subject of review on appeal. Mahoney v. Wilson, 15 Cal. 43; Frank v. Doane, 15 Id. 303 ; Green v. Doane, 15 Id. 304.
33. Report, effects of.—The facts found in the report of a referee are conclusive in the absence of the testimony, or where the testimony is not properly brought before the Court. Goodrich v. City of Marysville, 5 Cal. 430.
34. The report of a referee, under the statute, has the same legal effect as the award of an arbitrator. Headley v. Reed, 2 Cal. 322.
35. Finding of a referee conclusive as to the facts, on conflicting evidence. Knowles v. Joost, 13 Cal. 620.
36. The decision of referees upon a question of fact will be regarded, on appeal, as conclusive as the verdict of a jury, and will not be interfered with. Gunter v. Sanchez, 1 Cal. 45; Walton v. Minturn, Id. 362.
37. The report of a referee is the same as an award of an arbitrator. Grayson v. Guild, 4 Cal. 125.
38. If a 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 the report, so far as it concerns the matter referred, and it has no right to entertain any objection whatever. Headley v. Reed, 2 Cal. 322.
39. The report of referees is a verdict, within the spirit of the statute regulating entry of judgment after the death of a party, on verdicts. (3 Sandf. 660; 10 Wend. 601 ; 8 How. Pr. 244.) But a report signed and delivered after the death, cannot be given effect by relation back. Kissam v. Hamilton, 20 How. Pr. 369; 12 Abb. Pr. 548.
40. If, on a trial, whether by the Court or by a referee, a decision or report is made in favor of one party, and a reference is ordered to take an accounting, which is necessary in order to ascertain the amount for which judgment is to be rendered, judgment cannot be entered until the accounting has been had, and everything essential to the judgment has been ascertained. McMahon v. Allen, 7 Abb. Pr. 1.
41. Mandamus.—A mandamus lies to compel the Judge of a District Court to enter judgment on the report of a referee. Russell v. Eliott, 2 Cal. 246.
42. Appeal.- The Supreme Court will not review a judgment entered on the report of a referee, if no objection was made to the report in the Court below. Porter v. Barling, 2 Cal. 72.
43. When a report of a referee 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 case. Grayson v. Guild, 4 Cal. 125.
44. An order setting aside a report of a referee, appointed to take an account, is merely interlocutory, and not the subject of appeal before judgment. Johnson v. Dopkins, 6 Cal. 83.
45. An order setting aside the finding of a referee in a divorce case, and sending the case back to the referee for further testimony, is interlocutory in its character, and not the subject of appeal. Baker v. Baker, 10 Cal. 528.
46. It seems that a stay of proceedings, granted on an appeal from an order of reference, is proper. Smith v. Pollock, 2 Cal. 94.