State ex rel. Saline County v. Wilson. curred for the use of the County Farm, and of the poor kept thereon, and for the use and improvement of the Poor Farm and buildings thereon, and for farm labor and other work and services done by his order or contract, and of all bills due on account thereof, and of the parties to whom the same was due, to the time of each of said reports, and the said county court, upon examination thereof, caused to be drawn to each and every party to whom said bills or charges were due a warrant therefor, which said warrant was thereupon delivered to said parties, or in lieu thereof would cause its warrant to be drawn in favor of said defendant Wilson for the aggre gate sum of all said bills and charges, for which individ. ual warrants were not separately issued, and delivered the same to the said Wilson, with which said defendant Wilson might settle all said bills and charges with the person or persons to whom the same were respectively due, and that the items set out in defendant's counterclaim herein were and are items for which the said coun ty court had so furnished defendant the money with which to pay the same, except the items here now following, to-wit: ... "Cash paid for Skilinski cork leg 66 sick patient $25.00 $3.00 'Aggregating the sum of $43, and for which said items in said sum of $43, or any other amounts the plaintiff was never at any time liable. "That at the expiration of defendant Wilson's said term of office in February, 1916, the plaintiff paid to him all sums that were due him upon any and every account, and that thereafter there remained nothing due him from the plaintiff or its county court, but there remained in his hands due the plaintiff the said sum of $520, the proceeds of the sale of corn to Azo Potter and calves to Thomas Carpenter and mules to Thomas Conway, aforesaid, of which plaintiff had no knowledge. State ex rel. Saline County v. Wilson. "That the defendant Wilson was never at any time during his said term or terms of office as said superintendent, from the 25th day of March, 1912, to the 1st day of February, 1916, permitted by the County Court of Saline County, Missouri, to, sell the property of Saline County, Missouri, or any part thereof, coming into his hands or under his possession or control as said superintendent, and to hold the proceeds thereof as a contingent fund out of which to pay any bills or expenses incurred, and that during said term or terms of office he had no such contingent fund in his hands, and the moneys derived by him from the sale of property as aforesaid were derived from sales of property belonging to the county in his hands as said superintendent, but which said sales were neither reported to said county court by him nor known of by the court from any other source; nor did said county court know that he had any moneys from such source in his hands. "Said referee further reports that by reason of the facts so found and stated the defendant Wilson has made breach of the conditions of his said bond, and that the findings should be against the defendants and each of them upon defendants' answer and counterclaims, and in favor of the plaintiff, and that the findings upon the petition should be in favor of the plaintiff and against the defendants and both of them, and that plaintiff should have and recover of defendants upon the bond herein the full penal sum thereof, $2,000, to be satisfied, however, by the sum of $520 and interest thereon, and the costs and expenses of this suit." No exceptions to the report of the referee were filed until after the lapse of the January term. The record shows the filing of the exceptions to have been on May 13, 1918, at the May term of the court. The record fails to show any extension of time for the filing of such exceptions, as it also fails to show any objections to the filing of them out of time. The record does show the consideration of the exceptions by the circuit State ex rel. Saline County v. Wilson. court at the September Term, 1918, and the overruling of the same at that time, and further the approval of the report of the referee, and the entry of judgment in pursuance thereof. This outlines the case. I. Respondent suggests that the exceptions to the referee's report were not filed within four days, as required by Section 1442, Revised Statutes 1919, and for that reason there is nothing for review. The strict letter of this statute has been obviated in many ways by the appellate courts. Referee's In Clarke v. Kane, 37 Mo. App. 1. c. 263, THOMPSON, J., ruled that the party waived the time of filing by not making timely objection to a filing made some fifteen days after the report of the referee was made. In McPike v. McPike, 111 Mo. 1. c. 222, GANTT, J., ruled that the filing of the exceptions one day after the date given by the court for the filing of exceptions did not make it compulsory upon the trial court to strike out such exceptions upon motion of the opposing party. He ruled that the extension of time for filing exceptions was a matter of discretion in the trial court, and in effect ruled that, when the trial court in McPike's case overrruled the motion to strike out the exceptions, such court was exercising its discretion in the extension of time for filing. To like effect is State ex rel. v. Woods, 234 Mo. I. c. 23-24. We are cited to the Reinecke v. Jod, 56 Mo. 1. c. 387. This case simply holds that the trial court might have overruled the exceptions, because filed out of time, but this court reviewed the record as if the exceptions had been timely filed. In other words we did not disturb the discretion of the trial court. Gaston v. Kellogg, 91 Mo. 1. c. 109, is also cited, but this case cites the Reinecke, case, supra, and goes no further in its ruling. To like effect is Maloney v. Rv. Co., 122 Mo. 1. c. 114-115. The matter of the trial court's discretion to extend the time under the statute was not discussed. Berry v. State ex rel. Saline County v. Wilson. Rood, 209 Mo. 1. c. 673, is a case where no exceptions were filed and hence not in point. The foregoing are all the cases from this court pointed out by learned counsel for respondent. We adhere to the McPike and Woods cases, supra. The trial court was guilty of no ill-founded discretion in hearing the exceptions, and the plaintiff waived the time by failing to challenge the exceptions as being out of time. Review of II. The appeal was granted in this case on November 6, 1918, and the short transcript filed here February 3, 1919. An agreed continuance delayed the hearing in this court. This is an action at law, and was first heard by a referee. The petition states a pure action at law. The answer, whilst it has a prayer in a somewhat equitable form, in fact and law amounts to a counterclaim. Defendant in effect admits that he got the money sued for, but avers that he paid it out under authority of law, and by direction of the county court for matters which were properly chargeable to the county, and to this end sets out the items of payments which he alleges that he made. Such pleadings do not make an action in equity, although they may have been sufficient for a compulsory reference in a law case. We have gone into these details to determine a matter of practice. We have long ruled that in actions at law, although heard by a referee, this court will only review the evidence to such an extent as will enable us to determine whether or not there is substantial evidence to support the findings of the referee, and of the trial court approving or modifying such findings. [State ex rel. v. People's Ice Co., 246 Mo. 1. c. 202; St. Louis to use v. Parker-Washington Co., 271 Mo. 1. c. 241, et seq.] Up to the Parker-Washington Co. case, supra, there were some inaccuracies of expressions in some cases, but no attack upon the principle. The first discordant note appears in a short dissent in the Parker-Washington case, supra. However, this State ex rel. Saline County v. Wilson. slight discordant note in the Parker-Washington case became a roaring sound (with substantial judicial support) in Johnston v. Star Bucket Pump Co., 274 Mo. 414, l. c. 451. But the storm subsided in Roloson v. Riggs, 274 Mo. 522, 1. c. 528, where the rule in the Parker-Washington case received the full concurrence of four judges. That rule, as succinctly stated in Johnston's Case, 274 Mo. 1. c. 424, is: "The Parker-Washington Company case simply holds that in a case of compulsory reference, where the issues involved are issues purely at law, and where the trial court has approved the findings of fact made by the referee, such findings, so approved, will not be disturbed by this court, if there is substantial evidence to support such findings. In other words, that this court, in such case, will not review the evidence to determine its weight, but will only review the evidence to determine the fact as to whether or not there is substantial evidence to support the findings. Such findings in such a case stand here upon the same plane as the verdict of a jury in a law case, or as the findings of a court in a law case where no jury has been called." From the Rolos on case on matters moved smoothly, until 1919, when there was passed an act (Laws 1919, p. 213), now Section 1444, Revised Statutes 1919, which reads: "On appeal in all cases, whether law or equity, in which a referee has been appointed and made a report, the appellant court shall, on exceptions properly preserved, review the evidence and the findings of fact and conclusions of law of the referee and the trial court, and give such judgment as shall be conformable to the law on the evidence." In the brief of respondent in this case, it is urged that "the finding of facts by the referee will not be disturbed on appeal, if supported by substantial evidence." This conflicts with this statute, and we are (before considering the merits of the case) brought face to face with |