Hihn v. Peck

By the Court, Shafter, J.: This is an action for a partition. A reference was ordered* and on the coming in of the report it was excepted to by the [285]defendants. The exceptions were overruled, and the report was confirmed in its main features by interlocutory decree. Provision was made in the decree for a Commission to make partition among the parties according to their respective rights as settled by the report and the decree thereon, and on the 14th of September, 1864, a final decree was entered in the action. Four of the defendants—Farnham, administrator of Bates, Brady, Nichols and Porter, appealed from the decrees respectively, and from orders overruling their respective motions for a new trial.

First—One of the exceptions taken to the referee’s report was that it did not state the facts found.

Findings of referee.

It is the duty of a referee to act upon the questions committed to him, and to report whatever he is required to report by the order under which he acts. The order in this case did not require the referee to report the facts, but to try the issues and report “ his findings thereon.” To that extent the order was general and not special. (Peabody v. Phelps, 9 Cal. 213.)

That the parties were tenants in common, and that their respective interests were in fee simple absolute, was admitted on the face of the pleadings, and the only point in issue was as to the extent of the interests, the quantity or quality of which was so admitted. For instance, the plaintiff alleged that he owned thirteen fifty-fourths of the property, while the answers asserted that he owned but one twenty-seventh. The issues, narrowed as they were, undoubtedly involved matters of law as well as matters of fact, and the referee seems to have tried the issues in both elements or branches, and to have reported “ his findings thereon,” as required by the order. A jury sworn to try the issues in an action may return a general verdict, and a referee may under like circumstances act in like manner. The case of Lambert v. Smith et al., 3 Cal. 408, cited for the appellants, is not in point, for the Court considered in that case that the order of reference [286].called for a report of facts, and the judgment was reversed on the ground that the order had not been complied with in that particular. A Court must, under certain circumstances, find the facts in cases tried by it, but it has been uniformly held that it is not necessary for the Court in its findings to present the results of last analysis, but on the contrary that it would be sufficient if the Court found the facts entering as terms .into the legal proposition upon which the prevailing party based his right of recovery. The “ facts” which the Court is to find, and the “facts” which a pleader is to state, lie, according to the decisions in this State, in the same plane— that is, in both connections, “facts” are to be stated according to their legal effect. In cases of special verdicts even, if parties would have “ facts” entirely free of legal terminology, it behooves them to submit special interrogatories to the jury, so framed that they can be intelligibly answered without using it, and cannot be so answered by using it. (McEwen v. Johnson, 7 Cal. 258; Breeze v. Doyle, 19 Cal. 105.)