Darlington v. Hart

LANGDON, J.

This is an appeal from an order settling the final account of an executor and ordering distribution. The principal issue is whether the matter was heard by J. W. Mullin, Jr., as a referee or merely as a court commissioner.

Appellant Darlington, executor of the will, filed his first and final account, report and petition for distribution. Respondents Francis and Richard Hart served and filed separate exceptions and objections. Appellant answered and the hearing was set for November 14, 1935, and continued to November 29, 1935. At this time the matter was referred to Mr. Mullin, a court commissioner. A full hearing was had, and a number of witnesses were examined. Findings were prepared by counsel for respondent Francis Hart, properly served and filed, and on January 20, 1936, Mr. Mullin wrote counsel that the order of the court adopting his findings and conclusions as referee would be adopted by the court on January 29, unless additions or exceptions were received prior thereto. Counsel for appellant executor prepared alternative findings, which were filed January 29. On February 5th, said counsel wrote Mr. Mullin, stating that he desired to exercise rights under section 259a of the Code of Civil Procedure, in particular to except to the commissioner’s report and argue his exceptions before the court. Thereafter Mr. Mullin’s report, findings and conclusions of law were filed, and adopted by order of the court, which rendered judgment thereon.

The issue raised by the appeal is a simple one. The powers of a court commissioner are limited, and under sec

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tion 259a of the Code of Civil Procedure any party to a contested proceeding heard before such commissioner has a right to argue exceptions before the court after notice of motion given. If Mr. Mullin held this hearing as a court commissioner, the statutory rights of appellant were concededly violated, and the judgment cannot stand.

The position of respondents, however, is that Mr. Mullin heard the matter as a referee, under the voluntary reference provisions of the Code of Civil Procedure, sections 638-645. A referee is authorized by section 638 “to try any or all of the issues in an action or proceeding, whether of fact or of law, and to report a finding and judgment thereon”. His findings are the findings of the court, and reviewable in like manner. If Mr. Mullin acted in this case as referee, the procedure was in accordance with law, and appellant’s claim is untenable.