Thompson v. Patterson
Before: Department, McKee
Synopsis
Appeal — Transcript—Statement—New Trial.—Upon an appeal from an order denying a new trial, errors appearing on the judgment roll cannot be reviewed; but only such as appear in a bill of exceptions or statement. Held, accordingly, upon such an appeal—where it had been ordered that the statement appearing in the transcript be disregarded on account of the omission of documents properly belonging to it—that there remained no record upon which appellant was entitled to be heard, and no errors which this Court'could review.
Referee—Findings—Judgment.—A referee appointed to try and determine a case is, quoad the trial of the case, in the place of the Court, and his findings and report are the equivalent of the findings and decision of the Court itself.
Department No. 1, McKee, J.: This case and three other cases, by an order made by the [545]Court below upon: a stipulation of the parties, were referred to a referee to take and state an account, in the first case, between the plaintiff and the defendant, and to try and determine the rights of the parties in all the cases, and “ to declare the same by proper findings of fact and of law.”
Pursuant to the stipulation, the referee tried the four cases, and on April 30th, 1874, filed his report, findings, and conclusions of law. Defendant in the Court below gave notice of intention to move for a new trial upon a statement of the case to be prepared according to law. A statement was settled and certified by the referee; and upon it defendant moved for a new trial on one hundred and sixty assignments of error: The Court below denied the motion, and from the order the defendant appealed. This appeal the respondent in this Court moved to dismiss, upon the ground that the transcript on appeal was wholly insufficient, in that it did not contain certain matters of evidence which had been, by stipulation of the attorneys in the cases, used as parts of the statement of the case upon which the Court below denied a new trial. In response to the motion, the appellant filed a release of certain errors, and this Court denied the motion to dismiss the appeal; but as it had no power to amend or add to the statement in the transcript as made in the Court below, it ordered that all of the transcript be disregarded, except the pleadings, the' referee’s report and findings, and the notice of motion and order from which comes the appeal in the cases. In that condition of the record the appeal has been submitted upon briefs of counsel; and we are asked to review certain alleged errors which counsel for appellant claims “ arc shown and illustrated by the findings and report of the referee on its face.”
These alleged errors are errors of fact and of law. To review them involves an examination of the testimony, which was received by the referee at the trial, for and against certain so-called “ objectionable items ” which were allowed in the statement of the account; and also of the evidence upon which the referee made his findings ; so as to determine the legality or illegality of objections made to the allowance or disallowance of interest upon claims, and of commissions and attorney’s fees, as [546]
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